122 Tenn.

Volume 122 — Tennessee Reports

44 opinions

122 Tenn. 1Nashville, Chattanooga & St. Louis Railway Co. v. Board of Equalization for Assessment of Railroad Property (1908)
1. TAXATION. Of railroad property as‘'distributable property” and as “localized property” under Acts 1897, ch. 6. The statute (Acts 1897, ch. 5), requiring (in sec. 2) railroads to file schedules setting forth the length in miles of its entire roadbed, switches, and side tracks, showing the number of miles in this State, in each county and in each incorporated town in this State, and the value of the whole, and providing (in sec. 6) that the road (meaning the roadbed) of any railroad, shall include all side tracks, switches, etc., and (in sec. 7) providing that the roadbed, rolling stock, franchises, choses in action, and personal property having no actual situs shall be known as “distributable property,” and shall be valued separately from the other property, and providing (in sec. 8) that the depot buildings and other property — -real, personal and mixed — having an actual situs shall be known as the “localized property,” and shall be valued separately accordingly as- the same may be located in any of the counties or incorporated towns in this State, divides the taxable railroad property into “distributable property” and “localized property”; and the side tracks, switch tracks, and industrial tracks off the main right of way, but used as a part of the general system, and for the same purposes as such tracks on the main right of way are used, must he assessed for taxation as “distributable property” within the meaning above given, and not as “localized trackage off the main right of way”; but all buildings, coal bins, roundhouses, machine shops, depot buildings, and other structures located on the terminal yards must be assessed as “localized property.” Acts cited and construed: Acts 1882 (ex. ses.), ch. 16, secs. 2-4; Acts 1897, ch. 5, secs. 2, 6-8. Cases cited and approved: Franklin Co. v. Railroad, 12 Lea, 521; State Railroad Tax Cases, 92 U. S., 575; Railroad v. Wright, 151 U. S„ 470; Railroad v. Backus, 154 U. S„ 421; Railroad v. King, 57 C. C. A., 278, 120 Fed., 614; Porter v. Railroad, 76 Ill., 561; Railroad v. People, 205 Ill., 296; Dubuque v. Railroad, 47 Iowa, 196; Pfaff v. Railroad, 108 Ind., 144; State, ex rel., v. Railroad, 135 Mo., 618; State, ex rel., v. Railroad, 162 Mo., 391; Railroad v. Miller, 67 Ark., 498; Railroad v. Lancaster Co., 15 Neb., 252; Red Willow Co. v. Railroad, 26 Neb., 660. 2.. SAME. Same. Assessment of “distributable property” of a railroad as “localized trackage” Is absolutely void, and no taxes can be collected thereon. Where the side tracks, switch tracks, and industrial tracks off the main right of way of a railroad are separately and erroneously assessed as “localized trackage off the main right of -way,” whereas they should have been assessed as “distributable property” of the railroad under a statute (Acts 1897, ch. 5) providing for the assessement of railroad property, such separate assessment is absolutely void, and no tax can be collected on such assessment as for distributable property. (Post, pp. 13, 14, 41, 42.)
122 Tenn. 43Acklen v. Thompson (1908)
1. CONSTITUTIONAL LAW. Title of act for protection of game, birds, and fish expresses but a single subject of legislation. The title of an act, expressing as a subject of legislation the creation and establishment of a department of fish, game, and forestry, and the means and agencies for its maintenance in relation to the preservation, propagation, and protection of game animals, wild birds, and fish of the State of Tennessee, expresses but a single subject or purpose; and, for the better accomplishment of that purpose, means and agencies were to be provided for in the organization of the department therein named. All legislation germane to this single purpose or subject may be maintained, under our constitutional provision (art. 2, sec. 17) that "No bill shall become a law which embraces more than one subject, that subject to be expressed in the title.” (Post, pp. 49, 50.) Acts cited and construed: Acts 1909, ch. 519. Constitution cited and construed: Art. 2, see. 17. 2. GAME. Title of game animals, wild birds, and fish is in the State'for the public. It is well settled that, without the aid of a statute, and as a part of the common law, the title of game animals, wild birds, and fish is in the State as trustee for the benefit of its citizens, and a statutory declaration to that effect is unnecessary. (Post, p. 61.) Acts cited and construed: Acts 1909, ch. 519, sec. Í. 3. CONSTITUTIONAL LAW. Legislation qualifying owner’s title to game, without any express indication of such purpose in the title of the act, is unconstitutional. Where a statute, without anything in its caption or title indicating it, provides that, in every case of catching, taking, killing, or having in possession any game animal, wild bird, or fish, such possession shall imply the consent upon the part of the possessor that such title still continues in the State for the purpose of regulating and controlling the use and disposition of the same, is to that extent unconstitutional, because where such creatures lawfully pass into the possession of a citizen, the title thereto would thereupon vest in him; and conceding that his ownership and title may be qualified as attempted to be done in said act, still it cannot be done in an act whose caption or title does not specifically indicate such contemplated legislation. (Post, pp. 50-52.) See headnote 9. Acts cited and construed: Acts 1909, ch. 519, sec. 1. Constitution cited and construed: Art. 2, sec. 17. 4. SAME. Same. Caption providing for “preservation, propagation, and protection” does not authorize reservation of title in the State, as against an owner, for regulating their use and disposition. A provision in the title of an act for the “preservation, propagation, and protection” of game animals, wild birds, and fish does authorize a provision in the body of an act for the reservation of the title thereto in the State for the purpose of regulating the use and disposition of the same, when lawfully acquired by the possessor by catching, taking, or killing. (Post, p. 52.) Acts cited and construed: Acts 1909, ch. 519, sec. 1. Constitution cited and construed: Art. 2, sec. 17. 5. SAME. An act for protection of game, birds, and fish, and also for protection of forests, is unconstitutional as containing two distinct subjects. A single act containing provisions for the protection of game animals, wild birds, and fish, and also for the preservation of the forests of the State, contains two distinct subjects of legislation, namely, the protection of game, birds, and fish, as one subject, and the preservation of the forests as another and different subject, and is, therefore, unconstitutional and void. {Post, pp. 52, 53.) Acts cited and construed: Acts 1909, ch. 519, secs. 18 and 25. Constitution cited and construed: Art. 2, sec. 17. 6. SAME. Same. An act for propagation of game, birds, and fish will not authorize legislation for preservation of forests, for the reason that game and birds propagate in the forests. The fact that game animals and wild birds live and propagate in the forests will not authorize legislation for the preservation of forests in an act for the preservation, propagation, and protection of game animals, wild birds, and fish. (Post, p. 53.) Acts cited and construed: Acts 1909, ch. 519. Constitution cited and construed: Art. 2, sec. 17. 7. SAME. Title restricted to protection of birds in Tennessee will not authorize legislation for protection of birds without the State. Where the title of an act restricts legislation to the preservation, propagation, and protection of game animals, wild birds, and fish of the State of Tennessee, a provision in the body of the act that “No part of the plumage, skin, or body of any bird protected by this act shall be sold or had in possession for sale, irrespective of whether said bird was captured or killed within or without the State,” is not authorized by such title, because the having in possession for sale a bird eaptured or killed without the State can in ^r(iy tend to the accomplish? ment of the purpose declared in the title for the protection of birds in Tennessee. (Post, pp. 53, 54.) Acts cited and construed: Acts 1909, ch. 519, sec. 2. Constitution cited and construed: Art. 2, sec. 17. 8. SAME. Same. Title restricted to protection of game in Tennessee will not authorize legislation for protection of game elsewhere. Such title restricting legislation to the protection of game animals in Tennessee does not authorize legislation prohibiting the sale of any game taken or killed elsewhere than in Tennessee. (Post, p. 54.) Acts cited and construed: Acts 1909, ch. 519, sec. 11. Constitution cited and construed: Art. 2, sec. 17. 9. SAME. Legislation prohibiting the sale here of game taken outside the State is unconstitutional, as in violation of the commerce clause of the federal constitution. Legislation prohibiting the sale, in this State, of any game taken, captured, or killed outside of the State, operates as an unconstitutional interference with the owner’s property, and in contravention of the commerce clause of the federal constitution (art. 1, sec. 8, cl. 3), where the title to such property was acquired in a sister State or foreign country, and the game was brought within this State for use or commerce. (Post, p. 64.) Acts cited and construed: Acts 1909, ch. 519, secs. 2 and 11. Constitution of the United States construed: Art. 1, sec. 8, cl. 3. Case cited and approved: People v. Buffalo Fish Co., 164 N. Y., 93. 10. SAME. An act embracing more than one subject, or a subject not expressed in the title, is unconstitutional. In all our cases from Cannon v. Mathes, 8 Heisk., 504, down to Malone v. Williams, 118 Tenn., 437, where a statute, in one or more of its provisions, was found to be in contravention of the mandate of the constitution (art. 2, sec. 17) that “No bill shall become a law which embraces more than one subject, that subject to be expressed in the title,” it has been held to be inoperative and of no effect. {Post, p. 55.) Constitution cited and construed: Art. 2, sec. 17. Cases cited and approved: Cannon v. Mathes, 8 Heisfe., 504; Malone v. Williams, 118 Tenn., 437. Cases cited and distinguished: State v. Trewhitt, 113 Tenn., 579. 11. SAME. Act legislating1 one out of office, and devolving the duties and emoluments upon another, is unconstitutional. An act which legislates an officeholder out of office, and devolves the duties and emoluments thereof upon another, is, to that extent, unconstitutional and void. {Post, p. 55.) Acts cited and construed: Acts 1909, ch. 519. Case cited and approved: Malone v. Williams, 118 Tenn., 437.
122 Tenn. 56Memphis Street Railway Co. v. Flood (1908)
1. JUSTICES OF THE PEACE. Sufficiency of cause of action 'in warrant. The warrant issued by a justice of the peace in a civil action must contain some general and brief statement of the plaintiff’s cause of action sufficient to give the defendant reasonable notice of the general nature and character of the demand he is called upon to answer, so that he may not be misled in preparing his defense. (Post, pp. 61-75, 78, 79.) Code cited and construed: Secs. 5958, 5988 (S.); sees. 4921, 4951 (M. & V.); secs. 4146, 4176 (T. & S. and 1858). Cases cited and approved: Parris v. Brown, 5 Yerg., 267; Davis v. Parks, 6 Yerg., 260; Kirby v. Lee, 8 Yerg., 438; Pryor v. Hays, 9 Yerg., 417; Wood v. Hancock, 4 Humph., 465, 467; Manning v. Wells, 9 Humph., 746, 749; Odell v. Koppee, 5 Heisk., 90; Watkins v. Kittrell, 3 Bax., 42; Sale v. Eichberg, 105 Tenn., 333; Harrison v. McMillan, 109 Tenn., 78. Cases cited, distinguished, and approved: Bodenhamer v. Boden-hamer, 6 Humph., 264; Large v. Dennis, 5 Sneed, 596. 2. SAME. Same. Case in judgment of an insufficient warrant. A justice’s warrant requiring the defendant to appear and answer plaintiff “in a plea of damages under $500” does not comply with the rule stated in the preceding headnote based upon the statute (Shannon’s Code, sec. 5958) and the decisions of the supreme court'. (Post, pp. 61-75, 78, 79.) See citations under the preceding headnote. 3. SAME. Same. Statute in Code provisions especially relating to justices prevails over other general provisions as to com-mencment of actions. The statute (Shannon’s Code, sec. 5958), prescribing the form of a justice’s civil warrant and requiring some general statement of the nature and character of the demand sued on, is found in the chapter of the Code especially relating to proceedings before justices of the peace, and for that reason is controlling over the other general provisions of the Code as to the commencement of civil actions at law, where, by section 4522 of Shannon’s Code, it is provided that a justice’s civil warrant may be substantially the same as the form of the summons for the commencement of actions in the circuit court prescribed in section 4520 of Shannon’s Code, which does not require the cause of action to be stated therein, but leaves it discretionary with the plaintiff or the officer issuing the same. (.Post, pp. 73, 74.) Code cited and construed: Secs. 4520, 4522, 5958 (S.); secs. 3520, 3522, 4921 (M. & V.); secs. 2815, 2817, 4146 (T. & S. and 1858). 4. SAME. Same. Failure to state a cause of action in the warrant is not cured by verdict for plaintiff. The failure to state a cause of action in a justice’s civil warrant will not be cured by a verdict for plaintiff in the circuit court. The verdict will cure defects in the declaration where the cause of action is imperfectly stated, or where the plea supplies the matter omitted from the declaration, but not where no cause of action is stated at all. ' (Post, p. 73.) Code cited and construed: Sec. 5958. (S.); sec. 4921 (M. & Y.); sec. 4146 (T. & S. and 1858). Cases cited and approved: Cannon v. Phillips, 2 Sneed, 185, 191; Odell v. Koppee, 5 Heist., 88; Gas Co. v. Williams, 9 Heist., 324; Read v. Gas Co., 9 Heist., 550. 5., SAME. Same. Failure to state a cause of action in warrant is not cured by statute as to trials by consent where there has been no consent. The statute (Shannon’s Code, sec. 6931) providing that a case may be tried before a justice of the peace by consent of the parties, without a warrant, can have no application in a case where there was no such consent, so as to obviate or cure the defect in the warrant defective for its failure to state a sufficient cause of action as required by statute (Shannon’s Code, sec. 5958). (.Post, p. 74.) Code cited and construed: Secs. 5931, 6958 (S.); secs. 4894, 4921 (M. & V.); secs. 4119, 4146 (T. & S. and 1858). 6. SAME. Same. Requirement that warrant shall briefly state the cause of action is not a mere technicality, but a substantial right. The justice’s warrant is intended not only as the original process to bring the defendant before the court, but also, at least to some extent, to take the place of a declaration. The requirement that the cause of action shall be briefly stated in the warrant is not a mere technicality, but an absolute necessity to prevent surprise and injustice. (Post, pp. 74, 75.) 7. SAME. Jurisdiction, dignity, and importance of their courts have been greatly increased and extended. The jurisdiction of justices of the peace has been greatly increased and extended, and includes cases of very great importance, and their courts are of greater dignity and importance, and the public interest and rights of litigants require that their proceedings be conducted in better form and with more regularity and order than formerly, and the tendency of legislation and. judicial decision is to bring this about rather than the contrary. (Post, pp. 75, 76.) 8. SAME. Defects in warrant not cured by statute as to amendments. The defect in a justice’s warrant, defective for its failure to state briefly the cause of action or nature of the demand sued on, as required by statute (Shannon’s Code, sec. 5958), is not cured by the statute (Shannon’s Code, sees. 4583-4600), relating to the amendment of summonses or other proceedings in civil cases. The legislative intent expressed in said sections is that no process, pleading, or other proceeding shall be quashed for a formal defect, nor in certain cases for a matter of substance, where application to amend is seasonably made, and not to mate a defective process or proceeding valid and effective for all purposes. (.Post, p. 76.) Code cited and construed: Secs. 4583-4600, 5958 (S.); secs. 3574-3591, 4921 (M. & V.); secs. 2863-2879, 4146 (T. & S. and 1858). 9. SAME. Defect in warrant is not cured by oral statement of the cause of action before the justice. The defect in a justice’s warrant, on account of its failure to state briefly the cause of action or the nature of the demand sued on, as required by statute (Shannon’s Code, sec. 5958), was not cured by an oral statement of the cause of action made upon the trial before the justice. The proceedings before the justice cannot in any way affect the trial in the circuit court. (Post, pp. 62, 76.) Code cited and construed: Sec. 5958 (S.); sec. 4921 (M. & V.); sec. 4146 (T. & S. and 1858). 10. SAME. Defect in warrant is not cured by oral statement of the cause of action in the circuit court. The defect in a justice’s warrant, because of its failure to state briefly the cause of action or the nature of the demand sued on, as required by statute (Shannon’s Code, sec. 5958), was not cured by an oral statement of the cause of action made upon the trial in the circuit court upon an appeal from the justice of the peace. (Post, pp. 62, 76-78.) Code cited and construed: Sec. 6958 (S.); sec. 4921 (M. & V.); sec. 4146 (T. & S. and 1858). Case cited and distinguished: "ütley v. Railroad, 106 Tenn., 246. 11. SAME. Defect in justice’s warrant is not waived by going to trial without motion to quash in circuit court. The defect in a justice’s warrant, because of its failure to contain a general statement of the cause of action or the nature of the demand sued on, as required by statute (Shannon’s Code, sec. 5958), was not waived by going to trial in the circuit court upon appeal from the justice of the peace, without moving to quash the warrant. (Post, pp, 76, 77.) Code cited and construed: Sec. 5958 (S.); sec. 4921 (M. & V.); sec. 4146 (T. & S. and 1858). 12. ARREST OF JUDGMENT. In circuit court for failure of justice’s warrant to state briefly a cause of action. Where a justice’s warrant does not state a cause of action sufficient to give the defendant reasonable notice of what he is called upon to answer, it is void, and, after the trial, on appeal to the circuit court, and after the verdict for the plaintiff, in the absence of an amendment made at the proper time, or an application to amend, the defendant’s motion made in arrest of judgment should he sustained, and the suit dismissed. (Post, pp. 63, 66, 70, 75, 78, 79.)
122 Tenn. 80Boro v. Hidell (1909)
X. STATUTES OF LIMITATION'S. Nonresidence of defendant does not suspend their operation where complete relief may be had by suit with publication. The statute (Shannon’s Code, sec. 4455), suspending the operation of the statutes of limitations while the person against whom a right of action has accrued is absent from or resides out of this State, does not apply to a suit to set aside a deed of conveyance of land for fraud, because complainant may obtain full and complete relief in a suit by publication in lieu of personal 'service of process. (Post, pp. 86-96.) Code cited and construed: Sec. 4455 (S.); sec. 3458 (M. & Y.); sec. 2762b (T. & S.). Acts cited and construed: Acts 1819, ch. 28, sec. 1; Acts 1865, ch. 10, sec. 3. Cases cited and approved: Taylor v. McGill, 6 Lea, 294; Turcott v. Railroad, 101 Tenn., 104; Green v. Snyder, 114 Tenn., 100. Cases cited as bearing upon the question, but not on this special phase of it: Smart v. Waterhouse, 10 Yerg., 94; Yancy v. Yancy, 5 Heisk., 353, 354; Peak v. Buck, 3 Bax., 71; Morrow v. Morrow, 3 Tenn. Chy., 532, 534; Wright v. West, 2 Lea, 78, 83, 84, 85; Ridge v. Cowley, 6 Lea, 167; Carlin v. Wallace, 13 Lea, 573; Barbour v. Irwin, 14 Lea, 720; Kempe v. Rader, 86 Tenn., 191; Rose v. Wortham, 95 Tenn., 505, 508, 509; Nichols v. Loyd, 111 Tenn., 145; Maxey v. Powers, 117 Tenn., 381, 403, .404; Miller v. Wolfe, 115 Tenn., 234; Hamblen Co. v. Cain, 115 Tenn., 279; Wright v. Cunningham, 115 Tenn., 445; Hardin v. Hassell, 118 Tenn., 143; Ray v. Haag, 1 Tenn. Chy. App„ 249. Case cited as overruled: Carlin v. Wallace, 13 Lea, 573. 2. SAME. Fraudulent concealment of cause of action prevents their operation. Where a cause of action is fraudulently concealed from the complainant, the statutes of limitations will not run until complainant discovers the fraud. (Post, pp. 96, 97.) Cases cited and approved: Shelby v. Shelby, Cooke, 179; Porter v. Cocke, Peck, 30, 46; Haywood v. Marsh, 6 Yerg., 69; Reeves v. Dougherty, 7 Yerg., 232, 236, 237, 238; Smart v. Waterhouse, 10 Yerg., 105; Nicholson v. Lauderdale, 3 Humph., 200; Haynie V. Hall, 5 Humph., 290, 292; McLain v. Ferrell, 1 Swan, 48, 52; Peak v. Buck, 3 Bax., 71, 72; Vance v. Mottley, 92 Tenn., 310; Woodfolk v. Marley, 98 Tenn., 467, 471. 3. PRINCIPAL AND AGENT. Principal is affected with agent’s knowledge about the particular matter, when. Where complainant appointed her brother as her agent to obtain restitution of certain land of which she had been deprived by fraud, with the right and power to sue for said land, she was affected and hound by her said brother’s knowledge of the fraudulent concealment of the cause of action from the date he discovered it. (Post, pp. 97, 98.) Cases cited and approved: Bank v. Campbell, 4 Humph., 394; Tagg v. Bank, 9 Heisk., 479, 483, 484; Rhat v. Mining Co., 5 Lea, 1, 63; Bank v. Smith, 110 Tenn., 337, 345. Cases cited and distinguished: Duke v. Harper, 6 Yerg., 280, 284, 287; Yarbrough v. Newell, 10 Yerg., 376, 381, 382. 4. STATUTES OF LIMITATIONS. Right of action is barred in seven years after complainant’s agent discovered fraudulent concealment of cause of action, when. Where complainant appointed and employed her brother as her agent to obtain restitution of certain land which she had been induced to convey by fraudulent representations, and her said brother acquired knowledge of the fraud in 1890, complainant’s right of action was barred at the expiration of seven years thereafter. (Post, pp. 97, 98, 99.) 5. SAME. Vendor’s concealment of cause of action will not prevent their operation in favor of a fraudulent vendee. The concealment of a cause of action by the vendor, or one procuring a conveyance to be made to the conveyee, will not prevent the running of the statutes of limitations in favor of a fraudulent vendee. (Post, pp. 99, 100.) Cases cited and approved: Porter v. Cocke, Peck, 30, 46; York v.-Bright, 4 Humph., 312; Ramsey v. Quillen, .5 Lea, 184; Mul-loy v. Paul, 2 Tenn. Chy., 155; Plowell v. Thompson, 95 Tenn., 396, 404; Bates v. Preble, 151 U. S., 162.
122 Tenn. 101Godwin v. Taenzer (1909)
1. STOLEN PROPERTY. Theft of timber does not affect owner’s title. The owner of .timber does not lose his title thereto when the same is feloniously taken or stolen. (Post, pp. 103, 104.) Case cited and approved: Silsbury v. MeCoon, 3 N. Y., 379. 2. SAME. Same. Thief’s sale of stolen timber does not affect owner’s title. The thief’s sale and transfer of stolen timber does not deprive the original and true owner of his 'title or right to possession! whether the purchaser he innocent or a guilty participant in the crime. (Post, pp. 103, 104.) 3. SAME. Same. Same. Owner may recover the indentified timber, or its value in its changed form, from an innocent purchaser from the thief. The landowner, whose timber was felled, stolen, and sold by the thief J;o persons who bought it in good faith and innocently converted it to their own use by the assertion of ownership at the time of the purchase or otherwise, is entitled to recover the possession thereof from such purchasers, if it can be identified, either in its original or changed form or condition, but if such purchasers have appropriated it so that it can he no longer identified or followed in an action for its specific recovery, then the owner is entitled to a recovery "against such purchasers for its full value at the moment of its conversion by them, by their such purchase, without any deduction for the value of the labor and time, or of the money expended by the thief or wrongdoer in working the change. Cases cited and approved: Ware Co. v. United States, 106 U. S., 432; Silsbury v. MeCoon, 13 N. Y., 379; Nesbitt v. Railroad, 21 Minn., 491; Coal Co. v. Shoe Co., 69 Ark., 302; Everson v. Seller, 106 Ind., 266; Parker v. Railroad, 81 Ga., 387. Cases cited, distinguished, and approved: Dougherty v. Chest-nutt, 86 Tenn., 12; Holt v. Hayes, 110 Tenn., 42.
122 Tenn. 109Childers v. Wm. H. Coleman Co. (1909)
1. REMOVAL OF CLOUD UPON TITLE. Landowner may question the making of extension of timber contract made by his vendor, when. The purchaser of land filing a bill in chancery to obtain a decree declaring the title and possession of land to be in him as against the defendants claiming all the white oak timber thereon under a sale thereof and extension of time for the removal of the timber, made by complainant’s vendor, without notice to complainant, actual or constructive, may question the making of the extension, and its validity, because it vitally affects the title to his land. (Post, pp. 121, 122.) Case cited, approved, and distinguished: Iron Co. v. Iron Co., 11 Heisk., 434. 2. REGISTRATION. Unacknowledged instrument is not entitled to registration. The assignment of the sale and conveyance of all the white oak timber on certain land, when not acknowledged, is not entitled to registration. (Post, p. 122.) 3. SAME. Omission of words “for the purposes therein contained” in certificate of acknowledgment is fatal to its registration. The omission, in the certificate of aekfiowledgment of an instrument, of the words “for the purposes therein contained,” the concluding clause in the prescribed statutory form of acknowledgment, is fatal to the registration of the instrument. (Post, pp. 122, 126.) Cases cited and approved: Ellett v. Richardson, 9 Bax., 295; Currie v. Kerr, 11 Lea, 138; McGuire v. Gallagher, 95 Tenn., 355; Hughes v. Powers, 99 Tenn., 485. 4. SAME. Assignment of sal» of growing trees and. extension of time for removal must be registered. Instruments assigning a contract for the sale of growing trees and an extension of the time limit for the removal thereof transfer an interest in land, and are required to he registered. (Post, pp. 122, 123.) Case cited and approved: Ives v. Railroad, 142 N. C., 131. 5. STATUTE OE FRAUDS. Sale of growing timber must be in writing. Growing trees are a part of the realty, and consequently a sale thereof must he evidenced by a writing. (Post, pp. 123-126.) Case cited and approved: Ives v. Railroad, 142 N. C., 131, and 9 Am. & Eng. Am. Cases, 188, and note. Cases cited and distinguished: Iron Co. v. Iron Co., 11 Heisk., 441; Knox v. Haralson, 2 Tenn. Chy., 232; Dorris v. King (Tenn. Chy. App.), 54 S. W., 683. 6. -'SAME. Leases for more than one year, to be good, must be in writing. A conveyance- extending the time to remove growing timber, even if it be considered as a lease, is within the statute of frauds, and so, to be good for more than one year, it must be in writing. (Post, p. 126.) 7. SAME. License to enter land must be in writing. A conveyance extending the time to remove growing timber, even • if it be viewed as creating an irrevocable license to enter, is in the nature of an easement, and must be in writing. (Post, p. 126.) Case cited and approved: Nunnelly v. Iron Co., 94 Tenn., 397. 8. REGISTRATION. Without acknowledgment or with fatally defective certificate is not constructive notice. The registration of an instrument, either without acknowledgment or with a fatally defective certificate of acknowledgment, so that in either case it is not entitled to registration, is not constructive notice. (Post, pp. 113, 114, 126.) 9 INNOCENT PURCHASER. Without, notice, actual or constructive, of prior incumbrances or equities will be protected. An innocent purchaser of land, fo.r válüe, without notice, actual or constructive, of any prior incumbrances or equities, is entitled to a decree for the land as against claimants of such priorities. (Post, p. 126.)
122 Tenn. 127St. Louis & San Francisco Railroad v. Finley (1909)
1. PERSONAL INJURIES. Evidence stated and held to warrant peremptory instructions for verdict for defendant. The evidence in an action by a railroad employee against the railroad company for personal injuries is stated, reviewed, and held to warrant the granting of a motion for peremptory instructions for a verdict in favor of the defendant, because there was no proof of negligence upon the part of the defendant. (Post, pp. 131-133.) 2. SAME. Failure to introduce certain witnesses raises no presumptions of fact, when. Where the plaintiff in an action against a railroad company for personal injuries fails to make out his case, it is not incumbent upon the defendant to introduce any evidence; and therefore no presumption of fact arises from the failure of the defendant to cause certain witnesses of the accident to testify. (Post, p. 133.) 3. SAME. Action for personal injuries received in another State must be tried upon common law principles, where no statute is shown. Where, in an action against a railroad company for personal injuries resulting from an accident occurring in another State, and there is no averment and proof of the existence of any statute in that State similar to our statute upon the subject of obstructions upon railroad tracks, the case will be considered upon the principles of the common law. (Post, p. 133.) 4. STATUTORY PRECAUTIONS TO PREVENT ACCIDENTS ON RAILROADS. Declaratory of the common law except as to burden of proof and absolute liability. The statute for the prevention of accidents upon railroads is simply declaratory of the common law duties of railroad companies, except in respect of the burden of proof and the absolute liability imposed upon railroad companies for their failure to observe the prescribed precautions. {Post, pp. 133, 134.) Cases cited and approved: Horne v. Railroad, 1 Cold., 72/74-76; Railroad v. Fugett, 3 Cold., 402, 404; Railroad v. Smith, 6 Heisk., 174, 176; Burke v. Railroad, 7 Heisk., 451, 463; Railroad v. Connor, 9 Heisk., 19, 21, 22, 23; Railroad v. Humphreys, 12 Lea, 206; Railroad v. Fleming, 14 Lea, 139; Railroad v. Pratt, 85 Tenn., 9, 13, 14, 15; Patton v. Railroad, 89 Tenn., 370, 377, 378; Railroad V. Wilson, 90 Tenn., 274, 275; Rapid Transit Co. v. Walton, 105 Tenn., 416, 422, 423. 5. SAME. Do not apply to railroad employees on the track in the discharge of their duties. The statutory requirements for the prevention of accidents on railroads do not apply to the employees of the railroad company while upon its track in the discharge of their duties. {Post, p. 134.) Cases cited and approved: 'Railroad v. Burke, 6 Cold., 45; Railroad v. Robertson, 9 Heisk., 276; Haley v. Railroad, 7 Baxt., 239; Railroad v. Rush, 15 Lea, 145; Railroad v. Hicks, 89 Tenn., 301; Taylor v. Ráilroad, 93 Tenn., 305; Railroad v. Holland, 117 Tenn., 257. 6. RAILROADS. Common law applies to employees on the track; duty of brakeman to look and listen when sent to flag a train. It is the duty of a brakeman, under duty to go forward and flag an expected train, to look and listen continuously so long as he is upon the track, and his failure to do so constitutes such contributory negligence on his part as will defeat his action for the negligence of the crew of the approaching train, unless they see him and can prevent the accident, but fail to do so. These principles are applicable under the common law. (Post, pp. 134, 135.) Cases cited and approved: Railroad v. Rush, 15 Lea, 145; Railroad v. Hicks, 89 Tenn., 301; Taylor v. Railroad, 93 Tenn., 305. 7. SAME. Same. Presumption that brakeman will be alert and watchful in flagging’ train. The crew of the approaching train have the right to assume that the brakeman sent out to warn and signal the train will not go to sleep upon the track, but, on the contrary, that he will be alert and watchful in the discharge of his duties. (Post, p. 135.) 8. SAME. Duty of train crew to prevent accident to brakeman asleep on the track or dangerously near it. ■Where such brakeman falls asleep on the track, or so near thereto as to be within the sweep of the train, it is the duty . of such train crew to make every effort in their power to stop the train and prevent the accident, if they discover his peril. An avoidable injury inflicted after such discovery would be wanton and inexcusable. (Post, pp. 134, 135.) 9. SAME. Same. Brakeman on track cannot justly complain of the absence of a lookout, when. Where such brakeman goes to sleep on the track, he cannot complain that such train crew were also negligent in failing to keep a proper lookout. He is bound to know that no one upon the approaching train could contemplate him as having abandoned his duty,, and exposed himself to imminent and known danger by going to sleep upon the track, or so near to it as to be struck by the train. (Post, p. 135.)
122 Tenn. 137Fritz v. Sims (1909)
1. INJUNCTION. Chancery has no jurisdiction to enjoin criminal prosecutions. The chancery court has no jurisdiction to enjoin criminal prosecutions. Case cited and approved: Sawyer, Ex parte, 124 U. S., 200. ¡3. SAME. Same. Owner of lake is not entitled to injunction against further prosecutions for alleged violation of statute for protection of fish. The complainant, claiming to he the owner of a lake, is not entitled to an injunction against an assistant game warden to prevent annoyance from further threatened arrests and prosecutions for fishing in such lake, upon the ground alleged hy said officer that such fishing therein is in violation of the statute (Acts 1907, ch. 489) for the protection of fish.
122 Tenn. 141Benevolent & Protective Order of Elks of the United States of America v. Improved Benevolent & Protective Order of Elks of the World (1909)
FROM SHELBY. Appeal from the Chancery Court of Shelby County to the Court of Civil Appeals, and by certiorari from the Court of Civil Appeals to the Supreme Court. F. H. Heiskell, Chancellor.
122 Tenn. 148J. I. Case Threshing Machine Co. v. Watson (1909)
1. CONDITIONAL SALES. Nonresident seller must advertise sale by printed handbills, or sale will be rescinded. The duty imposed by statute (Acts 1889, ch. 81, sec. 1) upon the seller in a conditional sale of personalty to advertise the property for sale upon regaining possession after the buyer’s default, is absolute, and the failure of such nonresident seller to advertise by printed handbills invalidates the sale, and in effect rescinds the contract, so that the seller cannot recover the balance of the purchase price after crediting the amount realized by the sale. The reclaiming creditor’s noncompliance with the statute as to advertisement of the sale is ineffectual to place any further burden upon the conditional vendee. (Post, pp. 152, 153, 156.) Acts cited and construed: Acts 1889, ch. 81, secs. 1 and 4. Cases cited and approved: Furniture Co. v. Boon, 102 Tenn., 719. 2. SAME. Same. Statute provides for advertisments by printed handbills by nonresident seller, and by written or printed notices to be posted by resident seller. The statute (Acts 1889, ch. 81, sec. 1) providing that the seller in a conditional sale of personalty, upon regaining possession of tlie property after the buyer’s default, shall, within ten days thereafter, advertise it for sale by printed handbills, or written or printed notices posted on the door of the courthouse in the county in which the seller resides, and also at two public places in the civil district in which the purchaser resides, provides two modes of advertising the sale, one by printed handbills, applicable where the seller resides in another State or in county other than that in which the purchaser resides, and the other by posting written or printed notices on the courthouse door, and also at two public places in the civil district in which the purchaser resides, applicable where the seller and purchaser live in the same county in this State; and a nonresident seller cannot give notice of a sale in the buyer’s county in this State by posting notice, but must give notice by printed handbills. (Post, pp. 153, 154, 155, 156.) Acts cited and construed: Acts 1889, eh. 81, sec. 1. 3. SAME. “Printed handbills” for advertising the sale are defined. The “printed handbills” for advertising the sale of reclaimed property under conditional sales of personalty are printed notices of such sale, giving the time, place, and terms thereof, with a description of the property to be sold, distributed by hand, with reasonable diligence and good faith, among persons living in the neighborhood where the property is, and the sale is to take place. (Post, p. 155.) Acts cited and construed: Acts 1889, ch. 81, sec. 1. 4. SAME. Advertisment posted on courthouse door in county of nonresident seller would be an absurdity. The statute (Acts 1889, ch. 81, sec. 1) prescribing the mode of advertisement of the sale of the reclaimed property under a conditional sale thereof, when properly construed, does not require the seller who is a nonresident of the county or State in which the purchaser lives to post a notice of the sale on the door of the courthouse of the county in which the seller resides. Such a requirement would involve an absurd, foolish, and unnecessary act amounting to an idle ceremony. (Post, pp. 153-155, 156.) Acts cited and construed: Acts 1889, ch. 81, sec. 1. 5. STATUTES. Construed to give effect to the whole, without absurdities. A statute should be construed so as to give effect to every part of it, and at the same time avoid absurd conditions. (Post, pp. 156, 157.) 6. SAME. Where the disjunctive conjunction “or” is interpreted as used to indicate alternative conditions, a comma may be •inserted after the preceding word. The word “or” occurring in the conditional sales statute (Acts 1889, ch. 81, sec. 1) providing that a conditional seller, on regaining possession upon the buyer’s default, shall advertise the property for sale “by printed handbills or written or printed notices,” etc., is used as a disjunctive conjunction in its ordinary meaning to indicate an alternative; and the court, in interpreting the statute, may properly insert a comma after the preceding quoted word “handbills.” (Post, pp. 154,156-158.) Acts cited and construed: Acts 1889, ch. 81, sec. 1. Cases cited and approved: Whitesides v. State, 4 Cold., 175; McBride v. McBride, 111 Tenn., 616; Kuehner v. Freeport, 143 Ill., 92; Caster v. McClellan, 132 Iowa, 502. 7. CONDITIONAL SALES. Advertisment by printed handbills distributed a reasonable time before the sale, which may be ten days, when. The conditional sales statute (Acts 1889, ch. 81, sec. 1) providing that a conditional seller, on regaining possession upon the buyer’s default, shall advertise the property for sale by printed handbills, or written or printed notices posted at least ten days before the day of sale, etc., though permitting and requiring the resident seller’s advertisement of the sale to be by written or printed notices posted for ten days before the sale, and the nonresident seller’s advertisement to be by printed handbills distributed, without fixing the time before the sale, for the distribution of the printed handbills,. requires the seller, when permitted to advertise by printed handbills, to distribute the same a reasonable time before the sale, which may probably be the same time as in the other mode, namely, ten days. (Post, pp. 153, 154, 158.)
122 Tenn. 159Bell v. Noe (1909)
FROM HAMBLEN. Appeal from the Chancery Court of Hamblen County. Hugh G. Kyle, Chancellor.
122 Tenn. 161State ex rel. Millsaps v. Board of Education (1909)
1. MANDAMUS. Discretion of boards will not be disturbed, except, when. •The courts will not, by mandamus, disturb tbe decisions and actions of boards and officers having discretionary powers, except where they act in an arbitrary and oppressive manner, or act beyond their jurisdiction, or where they refuse to assume a jurisdiction which the law devolves upon them. Cases cited and approved: Turnpike Co. v. Marshall, 2 Bax., 104, 121, 123; Morley v. Power, 5 Lea, 691; Whitesides v. Stuart, 91 Tenn., 710; Williams v. Dental Examiners, 93 Tenn., 619; Insurance Co. v. Craig, 106 Tenn., 621, 639-643; State, ex rel., v. Taylor, 119 Tenn., 229. 3. SAME. Same. Case in judgment where action of board will not be disturbed by mandamus. Where a county board of education, under a statute (Acts 1907, ch. 236, sec. 10, subd. 4) making it the board’s duty to locate schools where deemed most convenient, locates a school at a certain place for the purpose of consolidating two of the schools, and ultimately three, into one, it acts within its discretion, which is beyond the control of the courts, and its decision and action will not be disturbed by mandamus.
122 Tenn. 164Wagner v. Citizens' Bank & Trust Co. (1909)
1. BANKRUPTCY. Act does not enlarge the doctrine of set-off. The bankruptcy act (Acts of Congress, July 1, 1898, ch. 541, sec. 68a, 30 Stat., 565), providing that “In cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor, the account shall be stated, and one debt shall be set off against the other, and the balance only shall be allowed or paid,” does not enlarge the doctrine of set-off, or enable a party to have a set-off in cases where the principles of legal or equitable set-off did not previously authorize it. {Post, p. 173.) Acts of Congress cited and construed: Act July 1, 1898, ch. 541, sec. 68a, 30 Stat, 565. Cases cited and approved: Sawyer v. Hoag, 17 Wall., 610; Bank v. Massey, 192 U. S., 138. 3. BANKS AND BANKING-. Relation between bank and its depositor is that of debtor and creditor. The general rule is that the relation between a bank and its depositor is that of debtor and creditor, and the bank is the debtor of the depositor. {Post, p. 174.) Case cited and approved: Harris v. Bank, 110 Tenn., 249. 3. SAME. Same. Bank holds lien on general deposits to secure depositor’s debt. A bank holds a lien on general deposits to secure the repayment of the depositor’s indebtedness, which lien may be enforced by applying the debtor’s deposits to the debts as they mature. {Post, p. 174.) 4. SAME. Bank has no lien on special deposits to secure depositor’s debt, when. A bank has no lien on special deposits, or on moneys deposited for a specific purpose, as for collateral security, or for the payment of a particular debt. (Post, jg, 174.) 5. SAME. Same. Trust deposit caithot be applied to trustee’s individual debt. Where a bank deals with a depositor, as trustee, and recognizes funds standing in his name as trust funds, knowing them to •be such, it cannot appropriate the same to the payment of the trustee’s individual indebtedness to the bank, as there is no right of set-off against a trust deposit, nor any lien for the trustee’s personal debts. (Post, pp. 174-183.) Cases cited and approved: State v. Bank, 128 Iowa, 597; Bank v. McCabe, 135 Mich., 479; In re Davis (D. C.), 119 Fed., 950; Wilson v. Daws'on, 52 Ind., 515; Lynam v. Bank, 98 Me., 448. Cases cited and distinguished: Bank v. Massey, 192 U. S„ 138; Lowell v. Trust Co., 158 Fed., 781; Clark v. Bank, 160 Mass.,' 26. 6. SAME. Same. Same. Case in judgment. Where, pursuant to -an agreement between an insolvent business corporation and its creditors, funds of the corporation were deposited in a bank, which was a creditor, for pro rata distribution among all the creditors, and where the bank, through its president, consented thereto, and the funds were not to be checked out without the counter signature of the representative of the committee of the creditors, the funds were trust funds for a specific purpose, with the consent of the bank, and it had no right of set-off in said fund against the bankrupt corporation’s indebtedness to it. 7. BANKRUPTCY. Trustee may recover funds deposited for all creditors as against bank’s claim of set-off, when. A trustee in bankruptcy may recover funds deposited in bank by the bankrupt for the benefit of all the creditors, pursuant to an agreement between the creditors, including the bank, even as against the claim of the bank for a set-off against the bankrupt.
122 Tenn. 184State ex rel. Davis v. Evans (1909)
1. COUNTY SUPERINTENDENT OP SCHOOLS. Elected without certificate of qualification cannot, in a quo warranto proceeding, show his eligibility by allegation of improper question asked on examination, when. In a proceeding in the nature of a quo warranto to test the right of the defendant to hold over the office of county superintendent of public schools, after the expiration of his regular term, in which the relator claimed that he was duly and regularly elected to the office, and that he qualified by giving bond and taking the oath of office required by law, but that defendant refused to turn over to him the books and papers appertaining thereto, on the alleged ground that the relator was ineligible, because he was not in possession of the certificate of qualification from the State board of education as required by statute (Acts 1895, ch. 51), the court cannot consider the relator’s contention that his failure to receive the certificate arose out of a mistake in an examination question asked him, and that if the question had been properly stated, he could and would have answered it correctly, and would have then received the certificate. (Post, pp. 187, 188.) Acts cited and construed: Acts 1895, ch. 54. 3. CONSTITUTIONAL LAW. Statute requiring county superintendents of public schools to possess literary and scientific qualifications to be evidenced by certificate of State board of education is not unconstitutional as delegating legislative power. The general school law (Acts 1873, ch. 25), by section 8 thereof, created. the office of county superintendent of public schools, and provided that he should be a person of literary and seien-tifie attainments, and, by section 31 thereof, prescribed the subjects to be taught in the public schools; and said section 8 was amended by a subsequent statute (Acts 1895, ch. 54) prescribing the same qualifications, and also requiring candidates for the office, previous to the election, to file certificates of qualification given by the State board of education, after undergoing a public examination, as a prerequisite to eligibility. Held, that said section 8, as originally enacted and as amended, necessarily referred to said section 31 prescribing the subjects to be taught; and the proficiency required in literature and science is in respect to those subjects, and-the said amendatory statute (Acts 1895, ch. 54) is not unconstitutional, as delegating legislative power to the board, because the board is only made a legislative agency for executing the purpose of the legislature. (Post, pp. 188-193.) Acts cited and construed: Acts 1873, ch. 25, secs. 8 and 31; Acts 1895, ch. 54. Cases cited and approved: Leeper v. State, 103 Tenn., 500, 523, 526; People, ex rel., v. Kipley, 171 >111., 44; Ex parte Bassitt, 90 Ya., 679; People v. Dunn, 80 Cal., 211; Commissioners v. Smith, 22 Colo., 534; Blue v. Beach, 155 Ind., 121; Scholle v. State, 90 Md., 729; State v. Thompson, 160 Mo., 333; Hurst v. Warner, 102 Mich., 238; State, ex rel., v. Stewart, 74 Wis., 620; Commissioners v. Sisson, 189 Mass., 247; Saratoga Springs v. Gas Co., 191 N. Y., 123. Case cited and distinguished: Wright v. Cunningham, 115 Tenn., 445. 3. COUNTY SUPERINTENDENT OE SCHOOLS. Statute requiring qualification by certificate is mandatory, and not merely directory. The mandatory statute (Acts 1895, ch. 54) prescribing the qualifications of county superintendents of public schools, and re-^ quiring them to possess a certificate of qualification given by the State board of education, is mandatory, and not merely directory, as shown by the clear intention of the legislature to make eligible for election only sucli persons as could comply witli tlie conditions indicated, which intention is emphasized by the provision giving the county court power to remove the superintendent for inefficiency. (Post, p. 193.) Acts cited and construed: Acts 1895, ch. 54. 4. SAME. Relator submitting question of his eligibility cannot require it to be tested by independent proceeding by defendant. Where, in a proceeding in the nature of a quo warranto to test the right of the defendant to hold over the office of county superintendent of public schools, after the expiration of his term, the relator submits in his bill, to the determina, tion of the court, the question of his eligibility to the office to which he had been elected, he cannot then successfully contend that, because he had been elected and had qualified by giving bond and taking the required oath, defendant should test relator’s eligibility and right to office by some independent proceeding. (Post, pp. 193, 194.) 5. QUO WARRANTO. Incumbent bolding over is not a usurper for failing to take the required oath, when. In a proceeding in the nature of quo warranto to test the right of the defendant to hold over the office of county superintendent of public schools, after the expiration of his term, the relator, newly elected to the office, cannot successfully contend that the defendant was a usurper, because he only took the oath of office, and did not take the oath to support the constitution of the United States and that of Tennessee, especially where it does not affirmatively appear that such oath was not taken. (Post, p. 194.) Cases cited and approved: Staggs v. State, 3 Hum., 372; State v. Allen (Tenn. Chy. App.), 57 S. W., 189.
122 Tenn. 195Landreth v. Powell (1909)
1. ATTORNEYS’ FEES. No lien on land, where suit for relief against option contract is abandoned, and land is conveyed according to contract. Where the complainant, in a suit to cancel a contract giving defendant an option to purchase certain real estate, abandoned the right of action, and, upon agreement of the defendant to pay the contract price and the costs of the suit, conveyed the premises to defendant, the litigation was not compromised, but complainant abandoned the purpose of the suit without obtaining anything whatever by the litigation, and determined to perform the contract from which relief was sought; and, therefore, complainant’s attorney did not acquire a lien on the real __estate for his fee. 2. SAME. Same. Attorneys will be taxed with costs upon dis-allowance and dismissal of their petition to have lien declared for fees. Where the solicitors of the complainant in a suit to be relieved from an option contract to convey certain land, upon complainant’s abandonment of such suit, and conveyance of the land in accordance with the option contract, filed a petition to have* a lien declared on the land for their fees which petition was disallowed and dismissed for the reasons stated in the foregoing headnote, the attorneys in whose names the petition was filed will be taxed with the costs of the petition and of the litigation arising therefrom.
122 Tenn. 198State v. Weaver (1909)
1. REGISTRATION LAWS. Prescribe no qualification of voters, but are to determine who possess the voting' qualifications. The registration laws, authorized by the constitution (art. 4, sec. 1), empowering the legislature to enact laws to secure the freedom of elections and the purity of the ballot box, prescribe no qualifications of electors, but regulate the exercise of the elective franchise, and prescribe a mode of ascertaining and determining whether or'not a man possesses the necessary qualifications of a voter, and serve to identify those registered as qualified to vote. (Post, pp. 200-204.) Acts cited and construed: Acts 1890 (ex. ses.), ch. 25; Acts 1891, ch. 224; Acts 1891 (ex. ses.), ch. 12. Constitution cited and construed: Art. 4, sec. 1. Cases cited and approved: Moore v. Sharp, 98 Tenn., 498; Madison v. Wade, 88 Ga., 699; People v. Hoffman, 116 Ill., 611; State-v. Butts, 31 Kan., 550.. 3. SAME. Apply to all elections and all voters in counties and districts falling within their provisions. The registration laws apply to all elections in the counties and civil districts falling within their provisions, and to all voters, whether property holders or residents, voting in the elections, and hence apply to municipal elections in the town of Lonsdale in Knox county, because said county has a population of over 50,000, though the town charter (Acts 1907, ch. 305) merely defines the qualification of voters in the municipal elections, and does not provide for registration. (Post, pp. 204-206.) Code cited and construed: Secs. 1189, 1198, 1199 (S.). Acts cited and construed: Acts 1907, ch. 305. 3. SAME. Voter otherwise qualified to vote, but voting without registration, is guilty of a misdemeanor. The registration laws make registration a prerequisite to voting in all elections held in counties and districts falling within their provisions, and prohibit voters from voting without the required lawful registration, and a landowner thus qualified to vote, hut voting in a municipal election without such registration, is guilty of a misdemeanor. {Post, p. 206.) Code cited and construed: Sec. 6437' (S.); sec. 5347 (M. & V.); sec. 4596 (T. & S. and 1858). 4. SAME. Voters must register in the civil district, ward, or precinct where they propose to vote. The registration laws require voters to register in the civil district, ward, or voting precinct where he proposes or offers to vote, as a prerequisite to his right to vote therein. This clearly appears from a consideration of all_ the provisions of the statutes, and such has been their practical construction. (Post, pp. 206, 207.) Code cited and construed: Sec. 1217 (S.). Case cited and approved: State v. Butts, 31 Kan., 550.
122 Tenn. 208Campbell v. Bartlett (1909)
1. SPECIFIC PERFORMANCE. Of title bond contract must be sued for with reasonable promptness. A bill for specific performance of a contract of sale of land evidenced by a title bond must be brought with reasonable promptness, even where the writing does not in terms make time of the essence of the contract, especially where there has been a great increase in the value of the property, and the purchase price has not been paid. (Post, p. 2X4.) Case cited and approved: Smith v. Christmas, 7 Yerg., 565. 3. SAME. Same. Coverture or infancy is no excuse for unreasonable delay to perform contract and sue for specific performance. In a suit for the specific performance of a contract of the sale of land evidenced by a title bond, the rule, requiring the infant heirs of the deceased purchaser to perform their ancestor’s contract by the payment of the purchase money, with reasonable promptness, to entitle them to relief, applies to a married woman as well as an infant, and her disability, like that of an infant, is not an excuse for unreasonable delay in making payment; and after a great lapse of time, and a large increase in the value of the property, a married woman, notwithstanding her disability, will not be awarded specific performance of a contract of the sale of land evidenced by a title bond in favor of her father, on which the purchase money was long past due when he died, especially where she seeks specific performance as to only an undivided one-eighth interest in the land as the share inherited by her, forty-two years after the death of her father and twenty-six years after the surrender of the title bond and the abandonment of the property by the other heirs. Cases cited and approved: Smith v. Christmas, 7 Yerg., 565; Mann v. Dun, 2 Ohio St., 187; Brown v. Haines, 12 Ohio, 1; Henry y. Conn, 12 Ohio, 193; Scott v. Barber, 14 Ohio, 547; Benedict y. Lynch, 1 Johns. Chy., 370. Cases cited and distinguished: Dodd v. Benthal, 4 Heisk., 601; Moore v. Walker, 3 Lea, 656. Numerous Tennessee cases upon the subject of estoppel of married women are cited in the opinion, on pages 213, 214.
122 Tenn. 222Deaderick v. State (1909)
1. TRESPASS. Cutting timber on land in possession of another under color of title cannot be defended under superior title, when. The statute (Shannon’s Code, sec. 6496, subsec. 7) declaring it to be a misdemeanor to trespass on the lands of another by cutting down or in any other manner destroying valuable timber thereon exceeding fifty cents in value, with a view to convert the same to his own use, was intended to protect the actual possession of land held under color of title from forcible invasion, and to prevent violence, bloodshed, and breaches of the peace, resulting from rival claimants of lands attempting to take forcible possession, and to compel resort to the courts for the determination of the validity of titles. It is, therefore, no defense that those who authorized and employed the defendant to cut the timber had the superior title to the land so possessed by another. Code cited and construed: Sec. 6496, subsec. 7 (S.); sec. 5403, subsec. 7 (M. & V.), sec. 4652, subsec. 7 (T. & S. and 1858). Case cited and approved: Dotson v. State, 6 Cold., 545. 2. MALICIOUS MISCHIEF. In prosecution for defacing building, possession only need be proved. In a prosecution for injury to the property of another, under the statute (Shannon’s Code, sec. 6496, subsec. 1) making it a misdemeanor to wantonly injure or deface any building, or fixture attached thereto, etc., belonging to another, possession only need be proved. (Post, p. 227.) Code cited and construed: Sec. 6496, subsec. 1 (S.); sec. 5403, subsec. 1 (M. & V.); sec. 4652, subsec. 1 (T. & S. and 1858). Cases cited and approved: State v. Mathes, 3 Lea, 37; Malone v. State, 11 Lea, 703. 3. TRESPASS. Party in possession may maintain action for. A party in actual possession of land can recover in an action for trespass to tlie same. (Post, p. 227.) Cases cited and approved: Bailey v. Massey, 2 Swan, 169; Large v. Dennis, 5 Sneed, 597; Allen v. McCorkle, 3 Head, 182. 4. SAME. Constructive possession resulting from actual possession of part under color of title will sustain prosecution for trespass. Possession, by occupation or inclosure, of part of the land covered by the possessor’s title papers, constitutes actual possession by construction of the entire premises within the boundaries described and defined in such title papers, so as to maintain a prosecution for the cutting or destroying of the valuable timber thereon, as well as to put in operation the statutes of limitations, and make a sale of the land by another cham-pertous, and to enable such possessor to maintain an action of forcible entry and detainer against a trespasser, and a replevin suit for the timber cut and removed. (Post, pp. 227-229.) Code cited and construed: Sec. 6496, subsee. 7 (S.); sec. 5403, subsec. 7 (M. & Y.); sec. 4652, subsec. 7 (T. & S. and 1858). Cases cited and approved: Pickens v. Delozier, 2 Humph., 400; Hebard v. Scott, 95 Tenn., 467; Creen v. Coal & Coke Co., 110 Tenn., 35; Mansfield v. Northcut, 112 Tenn., 536; Lieberman v. Clarke, 114 Tenn., 117. Case cited, distinguished, and overruled in part: Dotson v. State, 6 Cold., 545.
122 Tenn. 230State ex rel. Webb v. Parks (1909)
1. PARDON. Governor’s pardon of a justice convicted of official oppression, and fined and removed from office, cannot restore the office lost as on such impeachment. Where a justice of the peace indicted for official oppression is convicted of the offense, and is, by the judgment of the court, fined and removed from office, and forever thereafter disqualified from holding officer under the laws and constitution of the State, the governor’s pardon of the fine, and also attempting to render said judgment null and void and of no effect, except as to costs, was ineffective to restore the office, because the removal of the justice from office was as upon conviction on impeachment, and the governor’s pardoning power does not extend to judgments of conviction in impeachment cases. Code cited and construed: Sees. 6717, 6721 (S.); secs. 5607, 5611 (M. & V.); secs. 4813, 4817 (T. & S. and 1858). Code cited as inapplicable: Secs. 3655, 6066 (S.); secs. 2800, 5000 (M. & V.); secs. 1994, 4228 (T. & S. and 1858). Constitution cited and construed: Art. 3, sec. 6; art. 5, secs. 1-5. Cases cited and approved: Carpenter v. State, 6 Bax., 535; State v. Cassetty, 3 Tenn. Cas., 120; and authorities in other jurisdictions cited on page 238 of the opinion. Case cited as inapplicable: Moore v. State, 9 Yerg., 353. 2. REMOVAL FROM OFFICE. Upon conviction of a justice of the peace for official oppression without a proceeding; by bill fin the nature of a. quo warranto. Where a justice of the peace indicted for official oppression is convicted of the offense, the judgment to the extent of removing him from office and forever thereafter disqualifying him from holding office under the laws and constitution of the State, was as upon conviction on impeachment, and was properly rendered as part of the same proceeding; and it was, therefore, unnecessary, in order to obtain the justice’s removal from office, that the State, after his conviction, proceed against him by a bill in the nature of a quo warranto under section 5165 to 5187, inclusive, of Shannon’s Code. (Post, pp. 237, 238.) Code cited and construed: Secs. 5165-5187, 6717, 6721 (S.); secs. 4146-4168, 5607, 5611 (M. & V.); secs. 3409-3431, 4813, 4817 (T. & S. and 1858). Constitution cited and construed: Art. 5, secs. 1-5.
122 Tenn. 239Brown v. Crystal Ice Co. (1909)
1. MANDAMUS. To compel inspection of corporate books by a stockholder; mandatory injunction may be used as remedy, but mandamus is more direct. The remedy of a stockholder in a corporation to obtain an inspection of the corporate books, where permission to inspect them is denied, is by mandamus, though a mandatory injunction may be made effectual in securing for a stockholder an examination, of the books, by forbidding the officers and agents of the corporation from interfering with him in such examination; but the mandamus is a much more direct remedy, and can be conditioned by such restrictions as the court may deem necessary or proper to prevent injury to the books or undue inconvenience to the officers and agents of the corporation in the discharge of their duties. (Post, pp. 241, 242, 246.) Cases cited and approved: Bates v. Taylor, 87 Tenn., 319; Iron Cos. v. Pace, 89 Tenn., 707; State, ex rel., v. Williams, 110 Tenn., 549; Weihenmayer v. Bitner, 45 L. R. A., 457, note and cases cited. Case cited and distinguished: Hawkins v. Kercheval, 10 Lea, 535. 2. SAME. Same. Mandatory injunction to compel inspection of corporate books is not concurrent with mandamus, which is a prerogative writ. The remedy by mandatory injunction in chancery to compel a corporation to permit a stockholder to inspect the corporate books is not concurrent with the remedy by mandamus, which is a peculiar one, and, although the court of chancery, by Acts 1877, eh.- 97, has been given concurrent jurisdiction with the court of law, yet the remedy by mandamus has remained substantially the same in both courts as to the practice and the class of cases to which it applies, and, in its inherent nature, this remedy bias preserved in chancery the .same marlrs it had in the law court, and in both courts, the remedy by mandamus is regarded as in the nature of a prerogative writ, to be granted only in the high discretion of the court, and to he applied only to those cases as to which no other remedy exists. . {Post, pp. 242:246.) ■ Acts cited and construed: Acts 1877, ch. 97. Numerous Tennessee cases on the general subject of mandamus are collected in the opinion, on pages 248-245. 3. SAME. Bill in the name of the State; amendment inserting name of State when objection is made for its absence. Since the writ of mandamus is in the nature of a prerogative writ, the more logical rule is to require the bill to be presented in the name of the State; but where objection is ’made on the ground that the name of the State was not used, the court may, upon’ application, allow an amendment, inserting the name of the State. (Post, pp. 246, 247.) Cases cited and approved: Whitesides v. Stuart, 91 Tenn., 710; Weinberg v. Brewing & Malting Co., 21 Wash., 451, 47 L. R. A., 208-212, and authorities cited.
122 Tenn. 248Snyder v. Supreme Ruler of the Fraternal Mystic Circle (1909)
1. INSURANCE. Wife named as beneficiary under a fraternal benefit certificate and continuing1 payments after divorce is entitled to insurance, when; waiver. Where the charter of a social and benevolent corporation declared its object to be to unite fraternally persons of proper age and character for beneficial and protective purposes, to provide for the payment to its members, or their families, widows, heirs, blood relatives, or other dependents, benefits in case of death, without any restrictive words, without any affirmative provision that the benefit fund should be appropriated to none other than those enumerated, and without any provision for the forfeiture of a benefit certificate payable to the wife of a member upon her obtaining a divorce from the member, the divorced wife is entitled to recover on the certificate, upon the death of the member, where the certificate was previously issued to the member for the benefit of his wife who subsequently obtained a divorce, and who was thereafter induced by the representations of the highest executive officer of the corporation, made by him with knowledge of the facts, to continue the payment of the assessments and dues on the unchanged certificate, the receipt of which by the corporation, with knowledge of the divorce, operated as a waiver of the rule or law of the corporation. (Post, pp. 251-264.) Cases cited and approved: Lane v. Lane, 99 Tenn., 639; Manley v. Manley, 107 Tenn., 191; Alísen v. Crouch, 115 Tenn., 352; Maneely v. Knights, 115 Pa., 305; White v. Brotherhood, 124 Iowa, 293; Sheehan v. Journeymen, 142 Cal., 489; Society v. Blue, 120 I'll., 121; Lindsey v. Society, 84 Iowa, 734; Story v. Association, 95 N. Y., 474. 2. SAME. Same. Fraternal benefit insurance corporation may waive its by-law as to divorce by the reception oí assessments and dues with full knowledge. Where a by-law of a social and benevolent corporation provided that if the beneficiary designated in its benefit certificate is a husband or wife of the member and they (the member and beneficiary) should be divorced, then the benefit shall be payable to a certain other class of persons, and where the beneficiary is the wife of the member, and she afterwards obtains a divorce from the member, and thereafter informed the highest executive officer of the corporation of the fact, and that she had the certificate in her possession whereupon, such officer induced her, by his representations as to her rights thereunder, to continue the payment of the assessments and dues on the unchanged certificate, the receipt of which by the corporation, with knowledge of the divorce, operated as a waiver of such bylaw, because the corporation which made the by-law could waive it. (Post, pp. 258-261, 263, 264.) 3. SAME. Same. Same. Fraternal benefit insurance corporation refusing payment upon one distinct ground is estopped to insist upon a forfeiture of the certificate upon another ground. Where a social and benevolent corporation declined to pay a benefit certificate on the sole ground that the member’s “death was due solely and wholly to the excessive use of narcotics, alcoholic, vinous, and malt liquors, and the excessive use of morphine and other opiates,” in violation of a rule of the corporation, it will be estopped in the beneficiary’s suit thereon to assert or insist on a forfeiture of the certificate because the wife of the member, who was designated as the beneficiary, thereafter obtained a divorce, as well as to make other defenses. (Post, pp. 264, 265.) . - Cases cited and approved: Insurance Co. v. Thornton, 97 Tenn., 1; Insurance Co. v. Hancock, 106 Tenn., 513; Smith v. Insurance Co., 107 Mich., 270; McCormick v. Insurance Co., 163 Pa., 184. 4. ESTOPPEL. Ground for conduct before suit cannot be changed after suit, when. Where a party gives a reason for his conduct and decision touching anything involved in controversy, he is estopped, after litigation is begun, from changing his ground, and putting his conduct on another and different ground. (Post, p. 265.) Cases cited and approved: Ault v. Dustin, 100 Tenn., 366; Railroad v. McCarthy, 96 U. S., 258. 5. INSURANCE. Evidence stated and held to show that death was not caused by the use of drugs and liquors. In an action on a benefit certificate, void where the death of the member was caused by the excessive use of certain drugs and intoxicating liquors, the evidence is stated and held to show that the death of the member was not caused by the use of such drugs and liquors. (Post, pp. 254, 255, 257, 258, 266-268.) 6. CONSTITUTIONAL LAW. Statute imposing penalty for failure to pay insurance losses does not impair obligation of contract. The statute (Acts 1901, ch. 141), imposing a penalty or additional liability of twenty-five per cent upon insurance companies for the failure to pay insurance losses, is not void as impairing the obligation of the contract of insurance. (Post, p. 268.) Acts cited and construed: Acts 1901, ch. 141. Constitution construed, though not cited: Art. 1, sec. 20.
122 Tenn. 269Adcock v. Houk (1909)
1. INJUNCTION. Chancery cannot enjoin election officers from issuing certificate of election, nor the officers from assuming their functions. The chancery court has no jurisdiction or power to enjoin election officers from issuing a certificate of election, 'or to restrain public officers from assuming their functions, even though it he alleged that there was fraud in the election sufficient to vitiate it, and though the suit was not instituted by an opposing candidate. (Post, pp. 273, 274.) 2. CONTESTED ELECTIONS. Bill of officers seeking .to hold over and to prevent newly elected officers from assuming office 'presents a case of contested election. A bill filed by the old board of mayor and aldermen, seeking to hold over and to prevent the new hoard from assuming office and discharging the duties thereof, on the ground that the election was void by reason of certain frauds committed in the progress thereof, which made the result incurably uncertain, presents a contested election case, pure and simple. (Post, pp. 274, 275.) See headnote, 6. 3. CHANCERY JURISDICTION. Cannot be conferred by injunction suit whose very life is the injunction and which involves a contested election of which chancery has no jurisdiction. A distinction must be taken between the jurisdiction of the chancery court and the propriety of applying a particular remedy; but the rule does not apply so as to give chancery jurisdiction where the very life of the bill is the injunction sought by means of which the complainants seek to retain possession of the offices, after their time has expired, and to prevent the defendants, who have a prima facie title, from assuming the duties of the office, where such bill presents a contested election case which the chancery court has no jurisdiction to try. (Post, pp. 274, 275.) 4. CONTESTED ELECTIONS. Election and other contests over offices of mayor and aldermen is in the circuit court, and not in chancery. The jurisdiction of an election contést or other contest over the offices of mayor and aldermen is in the circuit court, and not in the chancery court, for the reason that no tribunal is in terms designated by statute for the trial of such cases, and no tribunal is provided for the induction of these officers, and because the statute provides, in substance, that the circuit court has jurisdiction in any case left unprovided for. (Post, pp. 274, 275.) Code cited and construed: Sec. 6063 (S.); sec. 4997 (M. &'V.); sec. 4225 (T. & S. and 1858). Cases cited and approved: Conner v. Conner, 8 Bax., 11; Baker v. Mitchell, 105 Tenn., 610. 5. SADIE. The incumbent, the inducting court, or the unsuccessful candidate may contest the successful candidate’s election and right to the office. The incumbent of an office, though not a candidate for re-election, may object to the induction of the person holding the certificate of election and. contest the matter with him on the ground that the election was void, or such contest may be raised by the court itself, upon which is devolved the duty of inducting the officer, or an unsuccessful candidate may maintain a contest with his successful opponent on the ground that the latter was disqualified to hold the office, and hence that the election was void; for the validity of an election may be determined in a contested election case. It is not required that there must be opposing candidates involved in the litigation before there can be a contested election case. (Post, pp. 275, 276.) Cases cited and approved: Marshall v. Kerns, 2 Swan, 68; Mc-Craw v. Harralson, 4 Cold., 34; Lewis v.Watkins, 3 Lea, 174, 181, 182; Maloney v. Collier, 112 Tenn., 78, 91-94. 6. SAME. Defined to be going behind the returns to ascertani who was elected, or to determine whether there has been any legal election. Where the questions raised by the litigation necessitate going behind the returns, the case presented is an election contest, whether the judgment to be rendered under the pleadings be that the one or the other of two contesting parties has been elected, or that there has been no legal election at all. (Post, pp. 276, 276.) See headnote, 2. Cases cited and approved: Marshall v. Kerns, 2 Swan, 68; Me-Craw v. Haralson, 4 Cold., 34; Lewis v. Watkins, 3 Lea, 174, 181, 182; State, ex rel., v. Gossett, 9 Lea, 644; Maloney v. Collier, 112 Tenn., 78, 91-94. 7. SAME. Cases involving annexation of corporate territory, county subscriptions to railroad companies, and removal of county seats are not contested election cases. < Cases involving the annexation of new territory to a city, county subscriptions.to railroad companies, and the removal of county seats are controversies not falling under the classification of contested election cases, but, on the contrary, under the class of cases wherein the chancery court restrains public officers from the exercise of unconstitutional powers, where such court’s jurisdiction is invoked on the ground that the people had not given their consent to or directed the proposed action by the constitutional prerequisite and required majority; and the means by which the will of the people is ascertained and their consent obtained is merely by accommodation or convenience calledan “election.” (Post, pp. 276-278.) Cases cited and approved: Winston v. Railroad, 1 Bax., 69; Morris v. Nashville, 6 Lea, 337; Lindsay v. Allen, 112 Tenn., 659, 660, 661; Catlett v. Railroad, 120 Tenn., 702. 8. MANDAMUS. Officer sought to he coerced by mandamus to recognize another as an officer or to obey some supposed mandate may question the same. Where it is sought by mandamus to compel an officer to recognize some other person as an officer, or to obey some mandate supposed to be the mandate of the people rendered in the form of an election, it necessarily results that the officer or person so sought to be coerced must have the right to question whether the person put forward as an officer to be received is in fact an officer, or whether the presumed direction is a real direction of the people. (Post, pp. 276-278.) Cases cited and approved: Pucket v. Bean, 11 Heisk., 600; Lawrence v. Ingersoll, 88 Tenn., 52.
122 Tenn. 279Southern Express Co. v. Patterson (1909)
FROM HAMILTON. Appeal from tbe Chancery Court of Hamilton County. — T. M. McConnell, Chancellor.
122 Tenn. 303Taylor v. Swafford (1909)
1. EXPECTANCIES IN INHERITANCE. Sale by heir expectant and sni juris, -will be sustained, if fair. A contract of sale of an expectancy in inheritance by an heir expectant and sui juris, while jealously viewed and closely scrutinized, yet, if fair and honest, will be sustained by a court of equity. (Post, p. 307.) Cases cited and approved: Fitzgerald v. Vestal, 4 Sneed, 258.; Steele v. Frierson, 85 Tenn., 430; Read v. Mosby, 87 Tenn., 759. 2. SAME. Same. Sale by heir expectant and sui juris will be sustained as a convenant to convey, when property comes into possession. A contract of sale of an expectancy in inheritance by an heir expectant and sui juris, if fairly made and based on a valuable consideration, will be enforced as against the 'grantor and his privies, whenever the property comes into his possession, upon the theory that the conveyance is treated and operates as an agreement or covenant to convey. (Post, pp. 308-311.) Cases cited and approved: Chew v. Barnet, 11 Serg. & R. (Pa.), 389; Bayler v. Commonwealth, 40 Pa., 37; Railroad v. Woelpper, 64 Pa., 366; McDonald v. McDonald, 58 N. C., 214; Page v. Gardner, 20 Mo., 507; Seymour v. Railroad, 25 Barb. (N. Y.), 285; Squib v. Wyn, 1 P. Vms, 381; Trevor Case, 2 P. Wms., 191; Wright v. Wright, 1 Ves., 412. 3. MARRIED WOMEN. Their deeds were void at common, law, and the validity thereof depends upon statute. The deed of a married woman conveying her land was absolutely void at the common law, and she was also incapable, under said law, of binding herself by contract; and, therefore, her power to contract for the sale of her real estate depends upon statutory authority, which must be strictly followed. (Post, pp. 310-312.) Cases cited and approved: Cope v. Meeks, 3 Head, 387; Gillespie v. Worford, 2 Cold., 632. 4. EXPECTANCIES IN' INHERITANCE. Conveyance by married woman is void for want of statutory power. A deed of trust executed by a married woman, though joined in by her husband, attempting to convey her expectancy as an heir in the estate of her father while living, or her possibility of inheritance in his estate, is void for want of statutory authority. (Post, pp. 305, 306, 312.) . 5. SAME. Same. Married woman is not estopped by warranty of title in her deed void for want of power. Where a married woman’s deed conveying her expectancy as an heir in the estate of her father was void for want of power to make it, she will not be estopped to claim the property subsequently descending to her from her father by reason of the warranty of title contained in such deed. (Post, pp. 312, 313.) Cases cited and distinguished: Gore v. Howard,- 94 Tenn., 577; Bruce v. Goodbar, 104 Tenn., 638. 6. SAME. Same. Same. Married woman is not estopped to assert invalidity of her deed void for want of power by short delay not prejudicial to parties. •Where a married woman was induced to sign and acknowledge a deed of trust conveying her expectancy as heir in her father’s estate to secure debts of her husband, in the making of which debts she had no part, and from which she received no benefit, by being fraudulently told or impressed by her husband and son that the instrument conveyed the husband’s property only, and no money was ever paid to her, and she did nothing to mislead the holders of the deed to their prejudice, she was not estopped, by her failure to protest against the fraud immediately on discovering it, nor by her inaction before seeking relief against the deed, to assert its invalidity. (Post, pp. 313, 314.) 7. SAME. Married woman’s deed of trust set aside as void without requiring reimbursement of moneys advanced to or for her husband, when. Where a married woman’s deed of trust, attempting to convey her expectancy as heir in the estate of her father as security for her husband’s debts, is set aside because it was absolutely void, ab initio, she will not be required to reimburse a beneficiary thereunder for moneys paid by him to her husband or at his instance and request when the deed was executed and delivered, or within a reasonable time thereafter. (Post, pp. 314, 315.)
122 Tenn. 316Finley v. Brown (1909)
1. ADOPTION OF CHILDREN. In one State entitles them to inherit land in another State having similar adoption laws, when. Where a child in a foreign State, in which both it and its adoptive father are domiciled, has acquired under the laws of that State the status of a child by adoption, such child must, under the comity of States, receive recognition of its status as child in every other State having substantially similar adoption laws, and must be held capable of succeeding to real property in accordance with the laws of the State where the property lies, if adopted children are capable of inheriting under such laws. (Post, pp. 327-330, 335.) Cases cited and approved: Woodward v. Woodward, 87 Tenn., 644; Trust Co. v. Blessing, 103 Tenn., 237; Ross v. Ross, 129 Mass., 246; Gray v. Holmes, 57 Kan., 217; Van Matre v. Sankey, 148 Ill., 536; Melvin v. Martin, 18 R. I., 650; McColpin v. Mc-Colpin (Tex. Civ. App.), 77 S. W., 238; Woodward’s Appeal, 81 Conn., 167, 168; Shick v. Howe, 137 Iowa, 249. 3. SAME. Same. Qualification of foregoing rule; provisions of the adoption statute of either State not to he extended to correspond to the other. Where the recognition of the status acquired by a foreign adoption is confined to the provisions of the local law of the State so recognizing the foreign adoption, or the statute of a foreign State is not permitted to extend any further than the local statute upon the same subject, and where the rights which may be acquired under tbe local adoption statute are broader than those acquired under tbe adoption statute of a foreign State, in wbicb tbe adoption was effected, tbe rights acquired under tbe foreign adoption will not be enlarged, so as to be commensurate witb those granted by tbe adoption statute of tbe State so acting by comity, such recognition of tbe status acquired by a foreign adoption, when so confined and limited, cannot be held to be a breach of tbe policy of that State in wbicb tbe land lies, where such State has a law of adoption; nor can it be held to be a violation of tbe statutes of descent. (Pos#, pp. 330-332, 335.) Cases cited and approved: Keegan v. Geraghty, 101 Ill., 26, 41; Sunderland’s Estate, 60 Iowa, 732. 3. SAME. Same. Same. Our statutes of descent and adoption construed together give adopted child, though adopted in another State, the right of inheritance, when. Tbe provision in our statute of descent (Shannon’s Code, sec. 4163) that an intestate’s land shall descend equally to all bis sons and daughters, and that if tbe intestate died “without issue,” bis land shall descend equally to his brothers and sisters, must be construed in connection witb our statute of adoption (Shannon’s Code, sec. 5411) providing that the adopted child shall have “all tbe privileges of a legitimate child to tbe applicant, witb capacity-to inherit and succeed to tbe real and personal estate of such applicant, as heir and next of kin,” so that where a foreign adoption is recognized in this State by comity, tbe same relation is created; at least to tbe extent that such status is fixed by tbe foreign statutes, unless .the powers purporting to be given thereby are greater than those conferred by our own statute. (Post, pp. 332, 333.) Code cited and construed: Secs. 4163, 5411 (S.); secs. 3268-3270, 4390 (M. & V.); secs. 2420, 3645 (T. & S. and 1858). 4 SAME. Same. Same. Same. Nonresident adopted child’s right of inheritance is not impaired by nonaction until after bill is filed by other claimants, when. The right of an adopted child of a nonresident intestate, where the adoption was made in another State, to inherit lands in this State was not impaired because the principle of comity was not invoked to obtain a recognition of the adopted child’s status in this State until after the death of the adoptive parent, nor until after the intestate’s brother had filed a bill to obtain possession of the property. (Post, pp. 333, 334.) 5. SAME. Same. Same. Same. Same. Foreign adopted child’s right of inheritance is not impaired by his nonresidence, and the residence of the brother of the adoptive parent. It is no objection to a foreign adopted child’s right to inherit lands in this State from his intestate adoptive parent that the child was domiciled in the foreign State, in which he was adopted, at the time he invoked the principle of comity to sustain his right to inherit, nor because the status of the adoptive parent’s brother as his heir in this State was immediately fixed on the date of the latter’s death, since the adopted-child’s status took effect from the entry of the decree of adoption, and when recognized under the rule of comity, would be recognized as existing as of the date of its inception. (Post, pp. 333-335.) 6. COMITY. Laws of other States opposed to our .policies will not be recognized by comity. This State will not, by comity, recognize the laws of any other State opposed to her own institutions or policy. (Post, p. 335.) 7. BASTARDS. Legitimization by subsequent marriage of parents is recognized everywhere. Where an illegitimate child has, by the subsequent marriage of its parents, become legitimated by virtue of the laws of the State or country where such marriage took place and the parents were domiciled, it is thereafter legitimate everywhere, and entitled to all the rights flowing from that status, including the right to inherit. (Post, pp. 335-338.) Cases cited and approved: Miller v. Miller, 91 N. Y., 315; Dayton v. Adkisson, 45 N. J. Eq., 603; Smith v. Kelly, 23 Miss., 167; Scott v. Key, 11 La. Ann., 232. Cases cited and disapproved: Lingen v. Lingen, 45 Ala., 410; Williams v. Kimball, 35 Fla., 49; Smith v. Derr, 34 Pa., 126; Brown v. Finley, 47 South., 577; Birtwhistle v. Vardill, 7 Clarke & Finnelly, 895.
122 Tenn. 339Kelly v. Conner (1909)
1. CHANCERY JURISDICTION. None to enjoin prosecutions for violation of criminal laws. The chancery court has no jurisdiction to enjoin pending or threatened prosecutions for the violation of the criminal laws of the State. This proposition, as a rule of general application, is unquestionably sound and well established in our jurisprudence. (Post, pp. 352, 353, 359-368, 397, 398.) Case cited and approved: Fritz v. Sims, 122 Tenn., 137, and numerous cases in other jurisdictions cited in the opinion, pages 362-368. Cases cited and distinguished: Trading Stamp Co. v. Memphis, 101 Tenn., 181; Ignaz v. Knoxville, 1 Tenn. Chy. App., 5; and numerous cases in other jurisdictions cited and reviewed in the opinion, pages 369-393. 2. SAME. Inherent and statutory jurisdiction is defined. The inherent jurisdiction of our chancery court is the jurisdiction of the high court of chancery of England, which was adopted by North Carolina as the jurisdiction of the chancery court of that State before the session act ceding to the federal government the territory subsequently becoming Tennessee, and which was adopted in this State, upon its formation and organization, by its adoption of the laws of North Carolina, and in the creation of its chancery court; and the jurisdiction subsequently vested in said court by the legislature is called its statutory jurisdiction. {Post, pp. 360, 361.) Code cited and construed: Sec. 6088 (S.); sec. 5022 (M. & V.); sec. 4279 (T. & S. and 1858). Acts cited and construed: Acts 1835-36, ch. 4. Constitution cited and construed: Art. 6, secs. 1 and 8. Cases cited and approved: Jackson v. Nimmo, 3 Lea, 597; Smith v. Bank, 115 Tenn., 18. 3. POLICE POWER. Statute prohibiting the sale of intoxicating liquors is within the police power of the State, provided there is no interference with interstate commerce. The statute (Acts 1909, ch. 1), prohibiting the sale of intoxicating liquors, as a beverage, within four miles of any schoolhouse, is a police measure of general application, within the police power of the State, and enacted upon a subject over which the legislature has plenary power, provided there is no interference with interstate commerce. (Post, pp. 345, 373-376.) Acts cited and construed: Acts 1909, ch. 1. Cases cited and approved: Webster v. State, 110 Tenn., 504 (and citations); Mugler v. Kansas, 123 U. S., 623 (and citations). 4. CHANCERY JURISDICTION. None to enjoin prosecutions for violation of a criminal law until its validity may be determined. The chancery court of this State has no jurisdiction to enjoin prosecutions for the violation of a statute enacted under the police power until the court may construe it and determine its validity or invalidity. The construction and validity or invalidity of criminal statutes must be determined by the courts invested with the administration and enforcement of the criminal laws. (Post, pp. 376, 377.) 6. SAME. To enjoin prosecutions under city ordinances, when and when not. A prosecution or action for the violation of a municipal ordinance is a civil case, and not a criminal case; and where such ordinance is void, it seems that prosecutions under it may he enjoined for the protection and preservation of property rights, and to prevent their destruction, hut prosecutions for the violation of ordinances imposing penalties for specific acts for the preservation of the peace and good order of the corporate community will not be enjoined. {Post, pp. 377, 378, 381, 382, 383, 384-393.) Cases cited and approved: Meaher v. Chattanooga, 1 Head, 75; Bristol v. Burrow, 5 Lea, 128; Wood v. Mayor, 5 Heisk., 441; O’Haver v. Montgomery, 120 Tenn., 448; Ignaz v. Knoxville, 1 Tenn. Chy. App., 5; Trading Stamp Co. v. Memphis, 101 Tenn., 181; Manufacturing Co. v. Los Angeles, 189 TJ. S., 207; Dobbins v. Los Angeles, 195 U. S., 241; Express Co. v. Ensley (C. C.), 116 Fed., 756; Hutchinson v. Beckham, 118 Fed., 399, 55 C. C. A., 333; Railroad v. Catlettsburg (C. C.), 129 Fed., 427; Atlanta v. Gaslight Co., 71 Ga., 106; Mobile v. Railroad, 84 Ala., 125; Austin v. Cemetery, 87 Tex., 330; Baseball & Amusement Co. v. New Orleans, 118 La., 228; Fellows v. Charleston, 62 W. Va. 665; Coal Co. v. St. Louis, 130'Mo., 323 (citing_Kansas v. Clark, 68 Mo., 588; Hollwedell, 74 Mo., 395; St. Louis v. Marchel, 99 Mo., 475); Poyer v. Des Plaines, 123 Ill., Ill; Denver v. Beede, 25 Colo., 172. Cases to the contrary cited and approved: Wardens v. Washington, 109 N. C., 21; Railroad v. Catlettsburg (C. C.), 129 Fed., 427; Logan v. Telegraph Co. (C. C.), 157 Fed., 574. 6. SAME. None to construe criminal statutes, and enjoin prosecutions for their violation. The chancery court has no jurisdiction to entertain a hill to construe a valid criminal statute, and pending the proceeding, or at its termination, enjoin prosecutions for violations of such statute. (Post, p. 393.) Cases cited and approved: Insurance Co. v. Craig, 106 Tenn., 641; Drug Co. v. Truett, 97 Tex., 380; Arbuckle v. Blackburn, 113 Fed., .625. 7. SAME. None to enjoin criminal prosecutions on account of multiplicity of suits. The chancery court will not enjoin prosecutions for the violations of a statute (Acts 1909, ch. 1), prohibiting the sale of intoxicating liquors, as a beverage, within four miles of any schoolhouse, construed by the prosecuting officers to prohibit sales at wholesale as well as at retail, at the suit of operators of distilleries and breweries insisting upon the invalidity of the statute, and, if valid, that it does not apply to them as wholesalers, upon the ground that they will as wholesalers be subjected to a multiplicity of prosecutions; for on the first prosecution the validity and construction of the statute will be determined, and it is presumed that the prosecuting officers will not use their authority to harass, vex, and oppress citizens. (Post, p. 394.) Cases cited and approved: Denver v. Beede, 25 Colo., 172; Poyer v. Des Plaines, 123 Ill., Ill; Brown v. Birmingham, 140 Ala., 600, 601. 8. SAME. None to enjoin criminal prosecutions upon the ground of irreparable injury, when. The chancery court will not enjoin prosecutions for violations of a statute (Acts 1909, ch. 1), prohibiting the sale of intoxicating liquors, as a beverage, within four miles of any schoolhouse, construed by the prosecuting officers to prohibit sales at wholesale as well as at retail, at the suit of operators of distilleries and breweries insisting upon the invalidity of the statute, and, if valid, that it does not apply to them as wholesalers, upon the ground that irreparable injury will result to them unless the relief is granted, where it appears that their sales before the enactment of the statute were chiefly in other States and countries, and where they may ship and store their products and' dispose of them in sister States and foreign countries without loss. (Post, pp. 394, 395.) 9. SAME. Same. Irreparable injury must be real and practically unavoidable to authorize injunction against criminal prosecution. To authorize an injunction against prosecutions for the violation of a criminal statute, upon the ground that irreparable injury will result unless such relief is granted, the irreparable injury must be real and practically unavoidable and certain to follow, and not merely fancied, or a matter of inconvenience. (Post, p. 395.) 10. SAME. None to enjoin criminal prosecutions because of multiplicity of suits, irreparable injury, and invalidity of statute, where defense at law is adequate and unembarrassed. The chancery court has no inherent or statutory jurisdiction to enjoin threatened criminal prosecutions under a statute enacted by a State in the exercise of the police power in relation to which the legislature has complete jurisdiction, although it be charged that the statute is invalid and that a multiplicity of actions thereunder will injure and destroy civil and property rights of the complainants, and that the damages resulting will be irreparable, when the complainants’ defense thereto, in the court having jurisdiction of the offense, is adequate and unembarrassed. (Post, pp. 396, 397.) 11. SAME. Supreme court has no jurisdiction on appeal, where the chancery court had none. Where the chancery court has no jurisdiction to entertain and determine a case on the merits, the supreme court on appeal from the chancery court cannot do so, but must dismiss it, though the case is of great public interest. (Post, p. 397.)
122 Tenn. 399Hord v. Holston River Railroad (1909)
1. RAILROADS. Owner of land through which a right of way Las not been acquired may recover damages, but not tf such, right of way has been acquired. A railroad company may blast rock on its right of way to level its roadbed; but if, in doing so, it casts rock upon, and injures, the land of an adjoining owner, whose land has not been condemned, and who has not conveyed or agreed to convey a right of way, he may recover damages for the injury done; but not so as to the owner of a tract through which a right of way has been condemned, or who has conveyed or'agreed to convey a a right of way through it, as such injury from blasting prudently done, without negligence, would be deemed to have been within the contemplation of the parties when the damages were assessed in the condemnation proceeding, and to have been covered by the award or consideration. (Post, p. 407.) Cases cited and approved: Carriger v. Railroad, 7 Lea, 388; Railroad v. Hays, 11 Lea, 389; Railroad v. Mossman, 90 Tenn., 157; Railroad v. Higdon, 111 Tenn., 121; Dodge v. Commissioners, 3 Mete. (Mass.), 380; Brown v. Railroad, 5 Cray (Mass.), 35; Cary v. Morrison, 129 Fed., 177; Sabin v. Railroad, 25 Vt., 363, 370, 371. 2. SAME. Damages for negligent construction or blasting, though right of way has been acquired. An assessment of damages for the condemnation of a railroad right of way does not cover injuries caused by negligent construction of the road or negligent blasting on the right of way, nor injuries inflicted on a tract other than that out of which the right of way was taken. (Post, pp. 407, 408.) Cases cited and approved: Carriger v. Railroad, 7 Lea, 388; Railroad v. Hays, 11 Lea, 389; Railroad v. Mossman, 90 Tenn., 167; Railroad v. Higdon, 111 Tenn., 121. 3. SAME. Sale and conveyance of right of way covers all damages recoverable in a condemnation proceeding. A landowner’s agreement for the sale of a right of way and his conveyance thereof to a railroad company covers all damages, of whatever sort, suffered by him in connection with the tract out of which the right of way was carved, and to which he would have been entitled in a condemnation proceeding. (Post, p. 408.) Cases cited and approved: Railroad v. Swank, 105 Pa., 555, 561; Hannaher v. St. Paul, etc., Co., 5 Dak., 1, 14; Canal Co. v. Lee, 22 N. J. Law, 243, 250; Hodge v. Railroad, 39 Fed., 449, 451; Norris v. Railroad, 28 Vt., 99; Watts v. Railroad, 39 W. Va., 196; R¿ilroad v. Smith, 111 Ill., 363; Connell v. Railroad, 81 Ill., 232. 4. SAME. Where a railroad is not liable for blasting and casting rock upon adjoining land, it is liable for its failure to remove it. Where a railroad company is not liable for casting rock upon adjoining land in blasting its roadbed through such right of way, nevertheless its duty is to remove the rock so cast within the shortest time in which it can be done, and with the least injury to the land, and it is liable for a breach of this duty. (Post, pp. 408, 409, 413.) Case cited and approved: Sabin v. Railroad, 25 Vt., 363, 370, 371. 5. SAME. Liable for use of way in hauling to and from its right of way. A railroad’s use of adjoining land for wagon ways in hauling to and from its right of way in preparation and construction of its road is not within the appraisal of damages for the condemnation or conveyance of the right of way, except as to the mere right of access, and hence the railroad company is liable for the use of such ways. (Po&t, p. 409.) Case cited and approved: Sabin v. Railroad, 25 Vt., 363, 370, 371. 6. SAME. Hot liable for blasting resulting in injuries to buildings, crops, and fences adjoining the right of way, when. Injury to adjoining buildings by blasting operations on a railroad’s right of way, and injury to crops and to fences, in so far as they are exposed to the blasting operations, are within the appraisal or consideration paid the landowner for the railroad right of way, as incidental damages, for which he is not entitled thereafter to recover additional damages. (Post, p. 409.) Cases cited and approved: Railroad v. Stovall, 12 Heisk., 1; Vaulx v. Railroad, 120 Tenn., 316, 329, 330; Hodge v. Commissioners, 3 Mete. (Mass.), 380. 7. SAME. Cost'of removal of stone, with interest, not with rents, is the measure of damages for blasting and casting rock upon adjoining land. Where a railroad company, in blasting operations on its right of way, casts a quantity of stone on adjoining land, the measure of its liability is the cost of removing the stone from the land, to which is to be added the interest from a reasonable date for completing the removal, but not the rental value of the land. (Post, pp. 409, 410, 411.) ■8. SAME. Liable for value of land only where cost' of removing rock blasted and cast upon it is more than its value. Where land adjoining a railroad right of way was so injured by the casting of rock upon it by blasting operations on the right of way that the cost of removing the rock would be more than the value of the land, the railroad’s liability was the market value of the land so injured, viewed as a separate parcel, and not in connection with the whole farm of which it was a part. • (Post, pp. 410, 411.) 9.CHANCERY PRACTICE. Rinding- oí master and concurrence of chancellor based upon an error of law is not binding upon appeal. The concurrence of the master and tbe chancellor as to the value of land is not binding upon appeal, where it appears that the concurrence is based upon an error of law. (Post, p. 410.) 10. RAILROADS. Liable for damages resulting from letting down fences and making wagon ways. A railroad company is liable to an adjoining landowner for the acts of its construction crews in letting down fences and permitting the entry of stock to destroy crops, and in making wagon ways over the land. (Post, p. 411.) 11. SAME. Not liable for injuries to fences by blasting and casting rock against them along acquired right of way, when. ■Where, after a rail fence had been injured by blasting operations of a railroad company in constructing its roadbed, the landowner erecting a wire fence in place thereof cannot recover for injuries to the wire fence, for the reason that he was not entitled to recover for injuries by the blasting to the rail fence, because necessarily contemplated by a conveyance of the right of way. (Post, p. 412.) 12. SAME. Liability for fence rails used for firewood by construction crews camped upon right of way. Where a railroad company camped construction crews on the right of way, it was its duty to furnish firewood to enable them to cook their meals; and hence the railroad company will be liable for the acts of the crew in tearing down the fences of adjoining owners and using the rails for firewood. (Post, pp. 412, 413.)
122 Tenn. 415Jefferson Bank of St. Louis v. Chapman-White-Lyons Co. (1909)
1. CORPORATIONS. Vice president may execute note in name. of corporation empowered to issue notes. Where the charter of a corporation authorizes it to issue notes, and the hy-laws authorize the president to sign contracts, and only require the attestation of the secretary to such documents as required the corporate seal, and further authorize the vice president to perform the duties of the president in the absence or disability of the president; and where the president of the company resides in another county, and the actual management of the business is generally left to the vice president, he (the vice president) has the right, under the said charter and bylaws, to execute a note in the name of the company.' (Post, pp. 418-420, 424, 425, 429-431.) Case cited and distinguished; Roach v. Woodall, 91 Tenn., 2Í3. 2. BILLS AND NOTES. Bona fide purchaser’s title will n.ot he defeated by merely suspicious circumstances. Where the plaintiff (a bank) purchased the note of a corporation, in due course, for value, before maturity, without actual notice of any infirmity or defect, the fact that the plaintiffs cashier, at the time he discounted the note, knew that the payee of the note was a manufacturer of stoves in one city, and that the maker was engaged in the wholesale drug business in another city, would not be sufficient "to give plaintiff knowledge of any defect in the title to the note, or raise an implication of bad faith in purchasing it, as the title of the purchaser will not be defeated where he receives the note under merely suspicious circumstances. (Post, pp. 420-422.) Acts cited and construed: Acts 1899, ch. 94, secs. 56 and 57. Case cited and approved: Bank v. Butler, 113 Tenn., 574. 3. SAME. A corporation’s note for stock in another corporation is ultra vires and not collectible by the payee. A note given by a corporation for the purchase of stock in another corporation is ultra vires, and against public policy, and is not collectible by the payee of the note. (Post, pp. 422-424.) Cases cited and approved: Elevator Co. v. Railroad, 85 Tenn., 703; Mallory v. Oil Works, 86 Tenn., 598; Marble Co. v. Harvey, 92 Tenn., 119; Miller v. Insurance Co., 92 Tenn., 167, 168, 175; Cullen v. Coal Creek, etc., Co., 42 S. W., 693. Cases cited and distinguished: McGrew v. Exchange, 85 Tenn., 572; Snoddy v. Bank, 88 Tenn., 576. 4. SAME. Corporation's negotiable note for an ultra vires purpose and against public policy is not void in the hands of an innocent purchaser before maturity. Where a corporation is authorized to execute notes, a negotiable note executed and issued by it for an ultra vires purpose is not void in the hands of an innocent purchaser for value before its maturity, even though the purpose for which the note was executed was in violation of the public policy of the State. (Post, pp. 424-429.) See cases cited and approved under the preceding headnote. 5. SAME. Bona fide purchaser of stolen negotiable instruments will be protected. Where negotiable securities are stolen and sold by the thief to an innocent purchaser, the title of the innocent holder will be protected. (Post, p. 429.) Case cited and approved: Memphis Bethel v. Bank, 101 Tenn., 134. 6. SAME. Bona fide purchaser and holder of a negotiable note may recover full amount. The dona fide purchaser and holder of a negotiable note in due course may enforce payment of the full amount thereof, and is not limited to the amount paid for the note, with interest thereon, although the note may be without consideration and invalid as between the maker and payee. (Post, p. 431, 432.) Acts cited and construed: Acts 1899, ch. 94, sec. 57. Case cited and distinguished: Oppenheimer v. Bank, 97 Tenn., 19; Campbell y. Brown, 100 Tenn., 245.
122 Tenn. 433Lay v. Linke (1909)
LIBEL AND SLANDER. Evidence required to sustain plea oí justification in an action of slander for alleged false charge of perjury. To sustain the defendant’s plea of justification in an action for slander, predicated upon an alleged false accusation of perjury made t>y the defendant against the plaintiff, the defendant must prove the charge by two witnesses, or by one witness and strong corroborating circumstances, because the plaintiff testified under oath when making the statement charged to be false, and this cannot be overcome by the oath of a single witness; but a preponderance of the evidence suffices, as in other civil cases, and the accusation need not be proved beyond a reasonable doubt, as is required in criminal cases. Cases cited and distinguished: Coulter v. Stuart, 2 Yerg., 225, 226; McLarin v. State, 4 Humph., 381; Chapman v. McAdams, 1 Lea, 505; Hill v. Goodyear, 4 Lea, 233; McBee v. Bowman, 87 Tenn., 141; Fleming v. .Wallace, 116 Tenn., 20.
122 Tenn. 440Moriarty v. State (1909)
1. INTOXICATING LIQ.TJORS. A bona fide fraternal lodge furnishing: its members liquors at cost is not engaged in sales thereof so as to be subject to tax, when. Where a tona fide incorporated lodge as a subordinate lodge of a fraternal benevolent and social organization, as that of the Elks, maintains a building for the convenience and comfort of its members, with the appurtenances of a social club; and in its buffet furnishes its members, but no one else, refreshments, including intoxicating liquors, as a purely incidental matter, for the cost thereof, with that of “service” added, without any profit, such lodge is not engaged in handling intoxicating liquors for sale within the sense of the revenue law (Acts 1907, ch. 541), imposing a tax upon every person, social club, etc., selling intoxicating liquors. Acts cited and construed: Acts 1907, ch. 541. Case cited and approved: Club v. Dwyer, 11 Lea, 452. Case cited and distinguished: Club v. Shelton, 104 Tenn., 101. Cases pro and con in other jurisdictions cited in the opinion, pages 44'4. 445. 2. SAME. Same. Servant of lodge is not guilty of misdemeanor as for selling, when the lodge is not guilty. The servant of such lodge, engaged in doing the service of furnishing liquor to the members, as shown in the preceding headnote, is not engaged in selling or aiding in the sale of liquors in violation of Acts 1899, ch. 161, sec. 1, and is, therefore, not guilty of a misdemeanor in so serving. (Post, pp. 442, 443, 453.) Acts cited and construed: Acts 1899, ch. 161, sec. 1; Acts 1907, ch. 541. 3. SAME. Clubs for illegal sale of liquor will ba held amenable to the law. Where a club is chartered and organized to evade, if possible, under the forms of law, the statutes prohibiting the sale of intoxicating liquors, and to furnish intoxicating liquors to its members as the principal purpose or one of the chief objects of its organization, and not as a mere incident, or to sell the same for a profit, the disguise should and will be uncovered, and the club and its members made amenable to the law so violated. (Post, pp. 445, 453, 4'54.)
122 Tenn. 455Carhart v. White Mantel & Tile Co. (1909)
I. LANDLORD AND TENANT. Lease is not renewed by holding over and paying original rental,- under a privilege to renew lease at increased rental. Where a lease provides for an additional term at an increased rental, and the tenant holds over after the expirátion of the lease period and pays the increased rental, this constitutes affirmative evidence on his part that he has exercised the option to take the lease for the additional term; hut where such tenant so holding over does not pay the increased rental so stipulated for, but continues to pay the original rental which the lessor accepts, without objection or demand of additional rental, this negatives the idea of the acceptance of the additional term, and such tenant occupies the status of a tenant at will. (Post, — pp. 460-470.) Cases cited and approved; Insurance Co. v. Bank, 71 Mo., 58; Delashman v. Berry, 20 Mich., 292; Terstegge v. Society, 92 Ind., 82; Murtland v. English, 214 Pa., 325; Stone v. Stamping Co., 155 Mass., 267. 2. SAME. Same. Tenant holding over and paying same rental is tenant at will; case in judgment. Where a lease for one year at a rental of one hundred dollars per month, payable monthly, gives the lessee the privilege of leasing the building two additional years, at the rate of $1,320 per year and $1,500 per year, respectively, payable monthly, and provides that “for no reason shall this lease be construed to continue for more than the time as set out herein, and occupancy by tenant thereafter shall be from month to month at the pleasure of the lessor;” and where the lessee, at the expiration of the term, gives no notice of intention to renew the lease, but. holds over, paying the original rental,' which is accepted by the lessor, without objection on account of his overlooking the provision as to increased rental, the lessor holds as tenant at will, and is not liable for the increased rental.
122 Tenn. 471Richardson v. Young (1909)
1. CONSTITUTIONAL LAW. Powers of government divided into legislative, executive, and judicial departments. The State constitution divides the powers of government into three distinct, independent, and co-ordinate departments, namely, legislative, executive, and judicial; with express prohibition against any encroachment by one department upon the powers, functions, and prerogatives of either of the others, except as directed or permitted by some other provision of the constitution, and such division of powers and absolute separation of such departments is essential to the maintenance of the republican form of government guaranteed to the States by the federal constitution. (Post, pp. 490-493.) „ Constitution cited and construed: Art. 2, secs. 1, 2, and 3; art. 3, sec. 1; art. 6, sec. 1. Cases cited and approved: State v. Armstrong, 3 Sneed, 634; Mabry v. Baxter, 11 Heislt., 682-689. 3.SAME. Same. Theoretical definition of legislative, executive, and judicial powers. The constitution does not define in express terms what are legislative, executive, or judicial powers; hut, theoretically, the “legislative power” is the authority to make, order, and repeal the laws; the “executive power” is the authority, to administer and enforce the laws; and the “judicial power” is the authority to interpret and apply the laws. (Post, p, 493.) 3. SAME. Same. Same. Theoretical division of powers is departed from in many instances in the constitution. Our State constitution as well as the federal constitution, and those of a great majority, if not all, of the States, departed from' the theoretical division of powers of government as defined in the preceding headnote, and in many important matters vested in each of the departments powers and authority that in strictness would belong exclusively to others; and in some instances all departments are vested with the same power, to be exercised concerning different matters, and this is especially noticeable in the vestiture of political powers. (Post, pp. 493-496.) Cases cited and approved; Crane v. McGinnis, 1 Gill & J. (Md.), 476; Baltimore v. State, 15 Md., 457; Hovey v. State, 119 Ind., 395; Fox v. McDonald, 101 Ala., 51. 4. SAME. Governor has no prerogative powers, but only such powers as are vested in him by the constitution. All sovereign power is vested in the people; and the chief executive has no prerogative powers, as in monarchal governments, but only such powers as are vested in him by the constitution as the fundamental law. (Post, p. 496.) 5. SAME. Power of election or appointment to office is a political power, not inherently belonging to any department. The power of election or appointment to office is a political power, not inherently legislative, executive, or judicial, and one that may be vested with equal propriety in either of them. (Post, pp. 497-504,514, 515, 516.) Numerous cases in other States cited and approved in the opinion, page 498, and some of them reviewed, pages 498-502. Numerous cases in other States cited, and distinguished or disapproved in the opinion, pages 502-504). 6. SAME. Same. Power of appoinment to office, not otherwise vested, may he exercised by the legislature. In view of the constitutional history and legislative practice and the practical contemporaneous construction acquiesced in for more than seventy-five years concerning the vestiture and exercise of the power of appointment to office, and in view of the general provisions of the constitution (art. 2, sec. S; art. 3, secs. 2 and 14; art. 6, secs. 3, 4, and 5; art. 7, secs. 1, 2, 3, and 4; art. 8, sec. 2) vesting power in the governor to fill certain offices and certain vacancies, and in view of other general provisions vesting certain elections in the people and certain appointments in the courts, and in view of the special provision (art. 7, sec. 4) that the election of all officers and the filling of all vacancies not otherwise directed or provided for by the constitution shall be made in such manner as the legislature shall direct, the whole appointive power is thus expressly disposed of, and there is nothing left for implication or construction, and the power of appointment to fill an office created by the legislature, and not made elective by the people, is not an executive function inherent in the executive department, when not otherwise expressly vested by the constitution or statute, but a political power, which, consistently with the distribution of powers of government, may properly be vested in either the legislative, executive, or judicial departments by the legislature; and hence the statute (Acts 1909, ch. 103, sec. 1) authorizing the election of the State board of elections by the legislature, instead of their appointment by the governor, is not for that reason unconstitutional. (Post, pp. 504-522.) Acts cited and construed: Acts 1909, ch. 103, sec. 1. Constitution cited and construed: Art. 2, sec. 3; art. 3, secs. 2 and 14; art. 6, secs. 3, 4, and 5; art. 7, secs. 1, 2, 3, and 4; art. 8, sec. 2. Cases cited and approved: Den v. Land Co., 18 How., 280; Baltimore v. State, 15 Md., 457; Americus v. Perry, 114 Ga., 881. 7. SAME. Same. Same. Legislature may appoint to office by act or joint session, where not otherwise provided by the constitution. The constitutional provision (art. 7, sec. 4), that the election of all officers and the filling of all vacancies, not otherwise directed or provided for by the constitution, shall be made in such manner as the legislature may direct, authorizes the legislature to exercise the appointing power by legislative act, or in joint session of the members of the two houses; for where the constitution authorizes the legislature to direct a thing to be done, it (Ms may d0 thing, upon the principle that the greater v'"W*J;|a~®»y^power includes the less. There is no limitation of the agencies it may employ. (Post, pp. 516-522.) Constitution cited and construed: Art. 7, sec. 4. Cases cited and approved: Luehrman v. Taxing District, 2 Lea, 440, 444; Redistricting Cases, 111 Tenn., 234, 291, 292; People v. Langdon, 8 Cal., 17; People v. Freeman, 80 Cal., 233; Gerino, Ex parte, 143 Cal., 414 (citing People v. Province, 34 Cal., 541; Bulger, In re, 45 Cal., 559); Americus v. Perry, 114 Ga., 881; People v. Hurlbut, 24 Mich., 64 (citing People v. Bennett, 54 Barb. [N. Y.], 480); Attorney-General v. Bolger, 128 Mich., 355; Sturgis v. Spofford, 45 N. Y., 446; Fox v. McDonald, 101 Ala., 51; Cunningham v. Sprinkle, 124 N. C., 642; Cherry v. Burns, 124 N. C., 761; Commissioners v. George, 104 Ky., 260; Cox v. State, 72 Ark., 97. 8. SAME. Persons not affected by the invalidity of a separable part of a statute cannot raise question as to the same, when. The persons appointed by the governor as members of the State hoard of elections under the original statute (Acts 1907, ch. 435) cannot, in proceedings to establish their right to the office as against the persons holding said office under an amendatory statute (Acts 1909, ch. 103), demand or call for a determination of the question as to the constitutionality of the third and fourth sections of such amendatory statute which are assailed upon the ground that they impose a political test as a qualification for office in violation of the constitution (art. 1, sec. 4) prohibiting a political test, further than an oath to support the federal and State constitutions, as a qualification for office, where the alleged invalidity of said sections, if conceded, would not render the whole amendatory act void; for such parties are not interested in these particular amendments as taxpayers, because no burdens are imposed by them, nor as citizens, because they are not affected in any way not common to all the citizens of the State. (Post, p. 522.) Acts cited and construed: Acts 1907, ch. 435; Acts 1909, ch. 103, secs. 3 and 4. Constitution cited and construed: Art. 1, sec. 4. Case cited and approved: Patton v. Chattanooga, 108 Tenn., 197. 9. SAME. The invalidity of an independent and severable part of a statute will not vitiate the valid parts, when. Where an amendatory act (Acts 1909, ch. 103, amending Acts 1907, ch. 435) was passed for two distinct purposes, one of which was, as shown by the first section of the later act amending the first section of the prior act, to take from the governor the power to appoint the members of the State board of elections, and yest it in the general assembly, while the other was, as shown by the third and fourth sections of the later act amending the fourth and eight sections of the prior act, to define and fix the qualification and character of the appointees, the first amendment concerning the appointing power, and the second the appointees, the two amendments are separate and independent matters. The change as to the appointive power does not affect the qualifications and character of the appointees, and the appointive power under the amended act will be governed by the provisions of the original act, as to the qualifications and character of the appointees, in making the appointments, if the third and fourth sections of the amendatory act are unconstitutional, upon the well settled rule that the invalidity of one provision of a statute will not vitiate those that are valid, where the invalid and valid provisions are severable and independent. (Post, pp. 522-524.) Acts cited and construed: Acts 1907, ch. 435, secs. 1, 4, and 8; Acts 1909, ch. 103, secs. 1, 3, and 4. Cases cited and approved: Tillman v. Cocke, 9 Bax., 429; Reelfoot Lake Levee District v. Dawson, 97 Tenn., 179; State v. Trewhitt, 113 Tenn., 561; Turnpike Co. v. Telephone Co., 118 Tenn., 88, 92, 99; State v. Washburn, 167 Mo., 680. 10. SAME. Constitutionality of a statute will not be determined when not necessary. The courts will not pass upon the constitutionality of a statute, when not required for the decision of the case, and where the determination of the question would not affect the rights of the litigants. (Post, p. 524.) Acts cited and construed: Acts 1909, ch. 103, secs. 3 and 4. 11. CONTESTED ELECTIONS. Chancery has no jurisdiction. The chancery court has no jurisdiction of election contests. (Post, p. 525.) Case cited and approved: Shields v. Davis, 103 Tenn., 539. IS. ELECTIONS. Provision requiring day of election of State board of elections to be fixed by joint resolution is not mandatory, but directory, governor’s veto is ineffective. The statute (Acts 1909, ch. 103, secs. 1 and 2, amending Acts 1907, ch. 435, sec. 1) requiring the State hoard of elections to be elected by the joint vote of both houses of the general assembly, upon a date to he fixed by joint resolution of the general assembly, instead of being appointed by the governor, expressly takes from the governor all control over their election, and vests it solely in the members of the general assembly, so that the governor cannot control such election by veto of the resolution; and the provision requiring the day of election to be fixed by joint resolution is not mandatory, but merely directory, and all that is necessary is that a time and place for the election be definitely fixed by the two bouses of the general assembly, and the failure to make the agreement in a particular form, or any irregularity in the assembling, will not defeat an election otherwise valid. (Post, pp. 524-530.) Acts cited and construed: Acts 1907, ch. 435, sec. 1; Acts 1909, ch. 103, secs. 1 and 2. Cases cited and approved: Winston v. Railroad, 1 Bax., 78; Covington’s Case, 29 Ohio St., 117. 18. SAME, Same. Governor’s veto of a joint resolution fixing date of election of officers by the general assembly does not affect the resolution or the election under it. The joint resolution fixing the day of the election of the State board of elections by the joint vote of both houses of the general assembly is not one which the constitution (art. 2, sec. 18) requires to be presented to the governor, and which cannot be effective without his approval, or adoption notwithstanding his veto, because that provision only concerns resolutions or orders which are legislative in their character, and does not relate to those in regard to mere matters of formal procedure, of which the house and senate have exclusive control; and a joint resolution fixing the date for the election of officers by the general assembly is not in any sense legislative, but concerns political functions solely within the jurisdiction and control of the legislature, or the members thereof, in regard to which the governor has no authority or duty to perform; and there can be no possible reason for giving him notice of such election or obtaining his consent or approval of an agreement fixing the date for holding it, for he has absolutely nothing to do with such election. (Post, pp. 530-537.) Acts cited and construed: Acts 1909, eh.' 103, sec. 2. Constitution cited and construed: Art. 2, sec. 18. Cases cited and approved: Hollingsworth v. Virginia, 3 Dali., 381; Commissioners v. George, 104 Ky., 260; Haight v. Love, 39 N. J. Law, 14; Erwin v. Mayor, 60 N. J. Law, 141; State v. Duluth, 53 Minn., 238; Rich v. McLaurin, 83 Miss., 95. 14-. SAME. Same. Same. Presentment of resolution fixing date of elections by general assembly to the governor, and his veto thereof, cannot affect the resolution, or the election under it. The fact that the resolution fixing the place and time for the election of the State board of elections by the general assembly was presented to the governor, and disapproved by him, did not destroy it; for when it was duly passed, as it was, the law (Acts 1909, ch. 103, sec. 2) was fully complied with, and what happened afterwards was immaterial, and cannot affect the validity of the resolution, or the election made under it. (Post, p. 537.1 10. CONSTITUTIONAL LAW. Question whether the constitutional quorum of each house of the general assembly applies to the joint convention of both houses is reserved, and not decided, but the negative is indicated. The joint convention of the senate and house of representatives of the general assembly for the purpose of electing officers is not composed of the senate and house as distinct bodies, but is merely an electoral college composed of the members of the general assembly, without regard to the branch of the general assembly to which they were respectively elected, and all the members stand upon an equality as members of the convention. This convention is not a part of the legislative department, and has no legislative powers. Such convention is a deliberative body whose sole power is the political function of electing officers, and, inasmuch as its organization and proceedings are not regulated by any statute or constitutional provision, it would seem, like all other such bodies, this body would have the power to elect its own officers, and adopt its own rules and be governed by established parliamentary usages and laws, one of which is that a majority of the members constitute a quorum to do business, and a majority of that majority controls and has the power to do the work of the whole. Prom the foregoing principles it is argued, but, because deemed unnecessary for the reason stated in headnote 17, it is not decided that the constitutional provision (art. 3, sec. 11) that “not less than two-thirds of all the members to which each house shall be entitled shall constitute a quorum to do business” applies exclusively to the two houses when acting separately for the purposes of legislation, or doing other business which each, as a separate house, has the power to do, and not when their members meet in joint convention for political purposes, such as the election of officers. {Post, pp. 537-550, 565.) Code cited and construed: Secs. 1136, 1138, 1139, 1141 (S.); secs. 1003, 1005, 1006, 1008 (M. & V.); secs. 812, 814, 815, 816a (T. & S. and 1858). 'Acts cited and construed: Acts 1909, ch. 103, sec. 1. Constitution cited and construed: Art. 3, sec. 11. Cases cited and approved: Lawrence v. Ingersoll, 88 Tenn., 62; Snow v. Hudson, 56 Kan., 386; Tillman v. Otter, 93 Ky., 600; Whiteside v. People, 26 Wend. (N. Y.), 634; Beck v. Hanscom, 29 N. H., 213; Kimball v. Marshall, 44 N. H., 465; Davidson v. Call, 2 Hinds’ Prec. of the House of Rep., sec. 1060. 16. ELECTION'S. By joint convention of the general assembly is authorized by requirement of election by joint vote of both houses. A statute or constitutional provision requiring officers to be elected by the joint vote or ballot of both houses of the legislature, by implication, clearly authorizes a joint convention of the members of the general assembly for such election purposes, and this has been the uniform custom. (Post, pp. 537, 538.) Acts cited and construed: Acts 1909, ch. 103, sec. 1. Constitution referred to and construed: Art. 7, sec. 3. 17. CONSTITUTIONAL LAW. Question whether election by joint vote of the general assembly was invalid for want of constitutional quorum of senate was reserved, because cured by appointment. In a suit to establish the right of complainants as members of the State board of elections under an appointment by the governor, as against the defendants appointed as such members by the comptroller, treasurer, and secretary of State, pursuant to Acts 1909, ch. 103, sec. 3, after the adjournment of the legislature, it is not necessary or determinative of the case to decide whether the attempted election of the defendants as such members hy the joint vote of the general assembly pursuant to the first section of said act was invalid for want of a constitutional quorum of the senate in the convention, as shown in headnote 15; for, if the successors of complainants have been either lawfully elected or appointed, the terms of complainants have expired and they have no standing in court; and it being determined that such appointment was valid, as shown in headnote 18, it was unnecessary to determine whether such election was valid. (Post, pp. 537, 550, 565.) Acts cited and construed: Acts 1909, ch. 103, secs. 1 and 3. 18. ELECTIONS. Vacancies in State hoard of elections may he filled hy secretary of State, comptroller, and treasurer, when. Under a statute (Acts 1909,. ch. 103, sec. 3) providing that all vacancies in the State hoard of elections shall he filled by the joint vote of the general assembly, except vacancies occurring while it is not in session, when, if the office of only one member is vacant, the remaining members of the hoard shall fill the vacancy, and if they fail to do so within thirty days, it shall be filled hy the secretary of State, comptroller, and treasurer, and that if there be more than one vacancy, it shall he filled hy appointment by such officers, it is decided, in view of the fact that a newly created office is vacant until it is filled, and that the word “vacant” when applied to office, means “without an incumbent,” regardless of when or how it became vacant, and that the words “occur” and “happen,” when referring to vacancies in office, are synonymous, and mean “existing” or “to be found,” that the comptroller, secretary of State, and treasurer are authorized to fill two or more vacancies in the State board of elections during the recess of the legislature, without regard to the time when the vacancies occurred, whether during the recess or while the legislature was in session. (Post, pp. 550-565.) Acts cited and construed: Acts 1909, eh. 103, sec. 3. Constitution of the. United States cited and construed: Art. 1, sec. 3; art. 2, sec. 2. Cases cited and approved: State v. Glenn, 7 Heisk., 472; Condon v. Maloney, 108 Tenn., 82; State v. Akin, 112 Tenn., 603; Farrow, In re, 3 Fed. (C. C.), 112; Clarke v. Irwin, 5 Nev., 129; Fritts v. Kuhl, 51 N. J. Law, 192, 194, 195, 196; Fairbank v. Antrim, 2 N. H., 105; Pike v. Jenkins, 12 N. H., 255; Miller v. Washington, 2 Hayw. & H., 244; Walsh v. Com., 89 Pa., 419; State v. Ware, 13 Or., 380; In re Representation Vacancy, 15 R. I., 621; Elliott v. Burke, 113 Ky., 479; Senate Election Cases, sec. 2, suhsecs. 107, 110; Opinions of Attorneys-General, vol. 3, p. 673; vol. 4, p. 523; vol. 7, p. 187; vol. 12, pp. 32, 499; vol. 16, p. 522. 19, SAME. Same. Question of doubt as to power to fill vacancies would he resolved in favor of the power. If the question was one of doubt about the power of the comptroller, secretary of State, and treasurer to fill vacancies in the offices of the members of the State hoard of elections occurring during a session of the legislature and left unfilled by that body, public policy and the effective administration of the law would require the doubt to he resolved in favor of the power to appoint. (Post, p. 564.) Acts cited and construed: Acts 1909, ch. 103, see. 3. 20. CONSTITUTIONAL LAW. Concurrent passage of two distinct legislative bills upon their second reading does not invalidate them. While the passage of a hill in the house 'of representatives upon a second reading, concurrently with another hill relating to a different subject, would he contrary to good parliamentary procedure and should not he done upon objection made, yet this ' alone will not authorize the courts to hold such reading and passage to he nugatory, so as to invalidate the act. (Post, p. 566.) Acts cited and construed: Acts 1909, ch. 103. Constitution cited and construed: Art. 2, sec. 18. 31. SAME. Same. Journal entry that is not conclusive that two bills were voted upon at the same time. A journal entry reciting that it was “moved that house hills 340 and 341 be passed upon second reading and referred to committee on elections,” where another entry shows that this motion prevailed by a constitutional majority, is not conclusive evidence that the two bills were voted upon at the same time. (Post, pp. 565, 566, 567.) Acts cited and construed: Acts 1909, ch. 103. Constitution cited and construed: Art. 2, sec. 18. Case cited and approved: Nelson v. Haywood Co., 91 Tenn., 605. 33. SAME. Same. Same. Presumption in favor of regularity of passage of acts, where journal entries do not affirmatively show noncompliance with constitution. Every reasonable inference and presumption will be drawn and indulged in favor of the regularity of the enactment of a statute, signed by the speakers of both houses and approved by the governor, or otherwise passed, that is, afterwards passed over the veto of the governor, if the bill was disapproved by him; and where the journal of the house of representatives recited that two bills, which related to different subjects, were passed upon their second reading at the same time, it will be presumed that the recital was an inaccurate statement of the clerk, or a clerical error, or that the bill in question, which was signed by the speakers of both houses and finally enacted as a law, was subsequently lawfully passed upon its second reading; for it does not affirmatively appear from said recital in the journal that the constitutional requirement was not complied with, as such recital was not conclusive that the two bills were voted upon at the same time. (Post, pp. 567-569.) Acts cited and construed: Acts 1909, ch. 103. Constitution cited and construed: Art. 2, sec. 18. Cases cited and approved: .State v. McConnell, 3 Lea, 341; Williams v. State, 6 Lea, 553; State v. Algood, 87 Tenn., 167; Nelson v. Haywood Co., 91 Tenn., 605; State v. Swiggert, 118 Tenn., 562.
122 Tenn. 570Ledgerwood v. Pitts (1909)
1. PRIMARY ELECTIONS. Not “elections” in the sense of the suffrage and election provisions of the constitution, and laws therefor may be enacted. The compulsory primary election law (Acts 1909, ch. 102), establishing legalized compulsory primary elections for political nominations, did not provide for “elections” within the meaning of the suffrage and election provisions of the constitution, and it was in the competency of the legislature to pass 'such an act, if not violative of other constitutional provisions. The primary election is simply a substitution for the caucus or convention, and in reality is not an election, but merely a nominating device. (Post, pp. 586-601.) Acts cited and construed: Acts 1909, ch. 102. Constitution cited and construed: Art. 1, sec. 5; art. 4, sec. 1. Cases cited and approved: Hanna v. Young, 84 Md., 179; Kenne-weg v. Allegany Co., 102 Md., 122; Montgomery v. Chelf, 118 Ky., 766; State, ex rel., v. Swanger, 212 Mo., 472; State, ex rel., v. Jensen, 86 Minn., 19; People v. Committee, 164 N. Y., 335; State v. Felton, 77 Ohio St., 554; State v. Michel, 121 La., 374. Cases cited and disapproved: Johnson v. Grand Forks Co., 16 N. D., 363; Spier v. Baker, 120 Cal., 370; State, ex rel., v. Canvassers, 78 S. C., 461; People v. Commissioners, 221 Ill., 9. 2. SAME. Same. Statutes may be enacted requiring nominations by primary, and prescribing additional qualifications for participants. The legislature may require that nominations for elections shall be by primary, and may prescribe additional qualifications for the voters participating in the same. (Post, pp. 594, 595.) Cases cited and approved: Runge v. Anderson, 100 Wis., 533; State, ex rel., v. Moore, 87 Minn., 308; State v. Drexel, 74 Neb., 776; Hopper v. Stack, 69 N. J. Law, 562; Coffee v. Committee, 164 N. Y., 335; Healey v. Wipf (S. D.), 117 N. W., 521; Griffin v. Gesner, 78 Kan., 669; Walling v. Lansdon, 15 Idaho, 282; State v. Nichols, 50 Wash., 508. 3. SAME. Statute excluding political parties casting less than ten per cent of the entire vote is not unconstitutional for that reason. The compulsory primary election law (Acts 1909, ch. 102) is not unconstitutional, and is not violative of the constitutional inhibitions against special and partial laws, because its classifications aré not unreasonable, arbitrary, or capricious, in that the first section of the act excludes from its benefits political parties casting less than ten per cent of the entire vote of the State at the preceding general November election. Such classification and exclusion is not unreasonable, arbitrary, capricious, and partial. Such minor political parties are not prohibited from making nominations in any manner deemed most expedient, and the names of their candidates may be printed on the official ballots voted in the general election. {.Post, pp. 601-604.) Acts cited and construed:. Acts 1909, eh. 102, see. 1. Cases cited and approved: Kenneweg v. Allegany Co., 102 Md., 128; State v. Poston, 58 Ohio St., 620; Gentsch v. State, 71 Ohio St., 151; State v. Felton, 77 Ohio St., 572; DeWalt v. Bartley, 146 Pa., 529; State v. Black, 54 N. J. Law, 446; State v. Anderson, 100 Wis., 523; Miner v. Olin, 159 Mass., 487; Corcoran v. Bennett, 20 R. I., 6; Ladd v. Holmes, 40 Or., 167. Cases cited and disapproved: Spier v. Baker, 120 Cal., 370; Button v. Board, 129 Cal., 337. 4. CONSTITUTIONAL LAW. Statute for compulsory primary elections for political nominations is not unconstitutional because it excludes the judiciary. The compulsory primary election law (Acts 1909, ch. 102), establishing compulsory primary elections for. political nominations, is not unconstitutional because it excludes from its operation the judiciary, including the district attorneys as a part of the judiciary; for such classification is natural, reasonable, and valid, and is not arbitrary, capricious, or unreasonable. {Post, pp. 605-608.) Acts cited and construed: Acts 1909, ch. 102, sec. 1. Constitution cited and construed: Art. 1, sec. 8; art. 11, sec. 8. Cases cited and approved: Stratton v. Morris, 5 Pickle, 497. 5. SAME. Same. Statute for compulsory primary elections excluding all the judicial officers except the county judges, is unconstitutional for its arbitrary classification. The compulsory primary election law (Acts 1909, ch. 102), establishing compulsory primary elections for political nominations, and excluding from its operation the judiciary, except county judges, is unconstitutional, because the inclusion of the county judges and the exclusion of the other judicial officers constitutes an unreasonable, capricious, and arbitrary classification. (Post, pp. 605-608.) Acts cited and construed: Acts 1909, ch. 102, sec. 1. Constitution cited and construed: Art. 1, sec. 8, art. 11, sec. 8. Cases cited and approved: State, ex rel., v. Glenn, 7 Heisk., 472; State v. McKee, 8 Lea, 24; State v. Leonard, 86 Tenn., 485; Stratton v. Morris, 89 Tenn., 497; State v. Maloney, 92 Tenn., 68; Johnson v. Brice, 112 Tenn., 59. 6. SAME. Act whose body provides for State conventions to select party presidential electors and delegates to national conventions, under its title providing for compulsory primary elections, is unconstitutional, because its body is broader than its title. The compulsory primary election law (Acts 1909, ch. 102)', entitled “An act to establish a compulsory system of legalized primary law for political nominations, to create the agencies for its operation, and penalize its violation,” provides in its body an elaborate plan for the nomination of party candidates by compulsory primary elections, and also provides the agencies and instrumentalities for effectuating the system therein devised, all of which is proper and germane to the main object expressed in the title; hut in section 9, the act provides for the holding off State conventions to select party presidential electors and delegates to national conventions, and to formulate platforms, and this provision for State conventions for the selection of such electors and delegates is not germane to the subject expressed in the title, and makes the body of the act broader than its title, and thus renders the act unconstitutional. (Post, pp. 608, 609.) Acts cited and construed: Acts 1909, ch. 102, sec. 9. Constitution cited and construed: Art. 2, sec. 17. Case cited and approved: Dixon v. State, 117 Tenn., 81. 7. SAME. Compulsory primary election, law requiring the payment of fees as a condition of becoming a candidate, is unconstitutional, because arbitrary, oppressive, and unreasonable. The compulsory primary election law (Acts 1909, ch. 102) is unconstitutional in the provision (sec. 42) imposing upon candidates the payment of specific fees, varying with the offices, for the expenses of holding the primary election, the payment of' which is required as a condition of becoming a candidate, because such provision makes an arbitrary, capricious, and unreasonable classification of candidates in providing that persons who are able to pay the prescribed fees may enter the primary, while other men who are equally capable and worthy are excluded because of their pecuniary inability to pay the prescribed fees. Such a law is unreasonable because the classification is arbitrary and oppressive. (Post, pp. 609-612.) Acts cited and construed: Acts 1909, ch. 102, sec. 42. Cases cited and approved: People v. Williams, 145 Ill., 573; People, ex rel., v. Breckon, 221 Ill., 9; Johnson v. Grand Porks Co., ^6 N. D., 363. 8. SAME. Whole act is unconstitutional where its unconstitutional parts cannot be elided or exscinded. The constitutional infirmities in the compulsory primary election law (Acts 1909, ch. 102), pointed out in the last three headnotes (5, 6, and 7), go to its integrity, and no process of elision or excision can he applied which will rescue and preserve the remainder of the act, and so the whole act is unconstitutional and void. (Post, p. 632.) Acts cited and construed: Acts 1909, ch. 102. 9. SAME. State legislature has all power, except as limited by the State and federal constitutions; while congress has no power except that conferred by the federal constitution. It is fundamental and axiomatic that a State legislature is the reservoir of all of the reserved power of the people, except as it may be limited and circumscribed by the State and federal constitutions; and the lawmaking power of the State recognizes no restraints and is bound by none except such as are imposed by said constitutions. The reverse is true of the federal congress, which can only exercise such power as is expressly or impliedly conferred by the constitution of the United States. (Post, pp. 588-590.) 10.SAME. Election and suffrage clauses of the constitution do not apply to municipal elections. Municipal elections are not within the meaning of the election and suffrage clauses of the constitution, which apply to elections referred to in that instrument and to such offices as may be created by the legislature. It has never been supposed that these clauses applied to municipal corporations, since it has been the practice of the legislature to permit owners of real estate situated within the corporate limits to vote in municipal elections, independent of their place of residence or other qualifications. (Post, pp. 597-600.) Code cited and construed: Sec. 1952 (S.); sec. 1634 (M. &-V.); secs. 1352, 1369 (T. & S. and 1858). Acts cited and construed: Acts 1875, ch. 92, sec. 10; Acts 1881, ch. 127; Acts 1883, ch. 114, sec. 11; Acts 1885, ch. 82, sec. 6. Constitution cited and construed: Art. 1, sec. 5; art. 4, sec. 1.
122 Tenn. 613Nashville Railway & Light Co. v. Norvell (1909)
1. TAXATION. Back assessments of property covered toy Acts 1907, ch. 602, must be made under it, and cannot be made under Acts 1903, ch. 258. The general assessment law contained in Acts 1907, ch. 602, repealed the prior general assessment law contained in Acts 1903, ch. 258; and the provision, contained in Acts 1907, ch. 602, secs. 30, 31 and 38, for the back assessment of property for taxation became, upon its enactment, the only law for the hack assessment of any property covered by it, and property cannot he back assessed under said Acts 1903, ch. 258. (Post, pp. 617, 618.) Acts cited and construed: Acts 1903, ch. 258; Acts 1907, ch. 602, sees. 30, 31, 38, and 79. 2. SAME. Proceeding for back assessment commenced under a statute is not affected by its subsequent repeal, when. A proceeding for the hack assessment of property under Acts 1903, ch. 258, commenced before its repeal by Acts 1907, ch. 602, may be maintained notwithstanding such subsequent repeal, because the right is saved by statute (Shannon’s Code, sec. 61.) (Post, pp. 618, 621.) Code cited and construed: Sec. 61 (S.); sec. 47 (M. & V.); sec. 49 (T. & S. and 1858). Acts cited and construed: Acts 1903, ch. 258; Acts 1907, ch. 602. Cases cited and approved: Richardson v. State, 3 Cold., 122; State v. Railroad, 14 Lea, 56, 63; State v. Bank, 16 Lea, 111, 118; Shelby Co. v. Railroad, 16 Lea, 401, 410; Wallace v. Goodlett, 104 Tenn., 670, 681, 684; State, ex rel., v. Taylor, 119 Tenn., 229. 3. SAME. Acts 1905, ch. 513, for assessment of street railway-properties is wholly prospective, and back assessments cannot be made under it. Acts 1905, ch. 513, providing a new method of assessing the property street railway companies, ■ not previously applicable to them, and by a new set of officers who before that had no jurisdiction over them, is wholly prospective in operation, and does not authorize a hack assessment for a period antecedent to its enactment, though it provides that all back assessments of street railway properties must be made under it {Post, pp. 618, 619.) Acts cited and construed: Acts 1905, ch. 513. 4. SAME. Street railway property is not assessable or back assessable under Acts 1907, ch. 602, but is under Acts 1905, ch. 513. Inasmuch as street railway property is assessable by the railroad tax assessors, under Acts 1905, ch. 513, it was not the intent or purpose of the legislature to provide for either the assessment or back assessment of street railway property under Acts 1907, ch. 602. (Post, pp. 619-621.) Acts cited and construed: Acts 1905, ch. 513; Acts 1907, ch. 6Ó2, secs. 1, 2, 3, 4, 5, 21, 22, 23, 31, and 38. Case cited and approved: State v. Railroad, 96 Tenn., 385, 407, 408. 5. SAME. No back assessment of street railway property under Acts 1903, ch. 258, or Acts 1907, ch. 602. There can be no back assessment of street railway property for the year 1904, under Acts 1903, ch. 258, because that act is no longer in force, in a case where the proceedings for back assessment were not begun before its repeal; and there can be no back assessment thereof under Acts 1907, ch. 602, because it does not cover this class of property. (Post, p. 621.) Acts cited and construed: Acts 1903, ch. 258: Acts 1907, ch. 602.
122 Tenn. 622Pennel v. State (1909)
1. CRIMINAL LAW. Plea in. abatement to indictment for irregularities in selecting grand jury must be made at the first opportunity. A plea in abatement to an indictment raising objection to the formation of the grand jury finding and preferring the same, or upon the ground of irregularity in selecting the grand jury, must be seasonably interposed, and must be made at the first opportunity. Cases cited and approved: Ransom v. State, 116 Tenn., 359; Rivers v. State, 117 Tenn., 235; Agnew v. United States, 165 U. S., 36. Case cited and distinguished: Crowley v. United States, 194 U. S., 461. 2. SAME. Same. Case in judgment where such plea in abatement comes too late. . A plea in abatement for irregularities in selecting the grand jury, as shown in the preceding headnote, filed more than two months after the return of the indictment, and after the- defendant’s arraignment and plea of not guilty, after the impanelment and oath of the trial jury, and after his plea of not guilty was withdrawn by leave of the court, comes too late, though Acts 1897, ch. 121, allows pleas in abatement and in bar to be filed at the same time. Acts cited and construed: Acts 1897, ch. 121. Case cited and approved: Turner v. State, 111 Tenn., 593. 3. SAME. Requisites of pleas in abatement. Pleas in abatement are strictly construed, and must possess the highest degree of certainty known to the .law in every particular, and they must exclude, by proper allegations and averment, every legal intendment or. conclusion that might otherwise he made against them hy the court. (Post, p. 631.) Cases cited and approved: State v. Willis, 11 Humph., 222; Smartt v. State, 112 Tenn., 539. 4. SAME. Plea in abatement to indictment for irregularities in selecting grand jury must negative 'earlier opportunity to file it, when. A plea in abatement to an indictment for irregularities in selecting the grand jury, filed more than two months after the return of the indictment found, is fatally defective, if it fails to aver that it was filed at the earliest opportunity after knowledge of the indictment, or if it fails to negative the existence of an opportunity tó file such plea earlier, or fails to aver the want of knowledge of such irregularity before the arraignment, plea of not guilty, and impanelment of the trial jury. (Post, pp. 631, 632.)
122 Tenn. 634Austin v. Shelton (1909)
1. STATUTES. Legislative intent determined from practical construction of previous, kindred, and contemporaneous legislation, when. The determination of the question whether a beverage or liquid which contains a small percentage of alcohol, hut unquestionably nonintoxicating, is a liquor in the sense of the revenue law (Acts 1909, ch. 479, sec. 4) imposing a privilege tax upon liquor dealers, depends upon the legislative intent as expressed in the statute imposing the tax, construed in the light of previous revenue laws imposing privilege taxes upon liquor dealers, and the practical construction given to them by those whose duty it was to enforce them, and by the courts of the State, and kindred and contemporaneous legislation concerning the sale of liquors, enacted from time to time by the general assembly. {Post, %>. 639.) 2. SAME. Same. Privilege tax imposed upon “liquor dealers” is construed to apply to sellers of intoxicating liquors, and not to sellers of nonintoxicating liquors. Where a statute (Acts 1909, ch. 479, sec. 4) imposes a privilege tax upon liquor dealers, and defines liquor dealers to be “every person, company, or firm selling spirituous, vinous, or malt liquors, beer or ale, or intoxicating bitters, or any medicated or adulterated cider, or any social club or association, incorporated or otherwise, which handles such liquors for sale,” and expressly provides that nothing in the statute “shall authorize or legalize the sale of liquors,” when interpreted according to the rule stated in the foregoing headnote, and in the light of such previous revenue laws, their practical construction, and in the light of the kindred and contemporaneous legislation, the terms “liquors” and “liquor dealers” must be construed as limited to beverages and persons selling beverages containing a sufficient quantity of alcohol to malte the beverage intoxicating, so that a vendor of soft drinks containing a small percentage of alcohol, insufficient in quantity to render the liquors intoxicating, is not liable for such tax. Acts cited and construed: Acts 1909, ch. 479, sec. 4. Other acts cited as in aid of the construction of said act are as follows: Acts 1877, ch. 23; Acts 1899, ch. 161; Acts 1903, ch. 257; Acts 1907, ch. 541; Acts 1909, ehs. 1, 14, and 385. Code cited and construed: Secs. 6785-6787, 6795, 6797 (S.); secs. 5672, 5673, 5681 (M. & V.); secs. 4862, 4863 (T. & S. and 1858). Cases cited and approved: Grills v. Mayor, 8 Bax., 247; State v. Rauscher, 1 Lea, 96; Webb v. State, 11 Lea, 662; Hatcher v. State, 12 Lea, 367; Harrison v. State, 96 Tenn., 548; Webster v. State, 110 Tenn., 506; Pressly v. State, 114 Tenn., 535; Foster v. Speed, 120 Tenn., 470. 3. SAME. Same. Same. Extension of statute so as to include dealers in nonintoxicating liquors would be judicial legislation. While, as an abstract proposition, any beverage which contains any spirituous, vinous, or malt liquor, however small the percentage thereof may be, comes within the letter of the statute imposing privilege taxes upon liquor dealers, it does not come within its intent and spirit, as shown in the foregoing headnotes, and to extend the statute so as to include dealers in nonintoxicating liquors would be judicial legislation. (Post, p. 644.) 4. INTOXICATING LIQUORS. Dealers subject to privilege tax; question of proof in each case. The beverage sold, to make the seller liable for the privilege tax imposed upon liquor dealers, must be one that is intoxicating; and whether or not it is intoxicating is a question of fact, to be determined upon the proof in each and every case in which it arises, just as if the sale was one of bitters, which does not make the dealer liable, unless the bitters are intoxicating. (Post, p. 645.) 5. SAME. Prima facie presumption that licensee under a federal license is a liquor dealer is rebutted by proof that the liquors sold were nonintoxicating. The provision in the statute that the procuring of a United States revenue license authorizing the licensee to become a wholesale or retail liquor dealer shall be -prima facie evidence that the licensee is such a liquor dealer makes such license only prima facie evidence of the fact, which may he rebutted by proof, admission, or concession that the beverages sold were nonintoxicating, which fully meets and overcomes such prima fade case. {Post, pp. 638, 645.) Acts cited and construed: Acts 1909, ch. 479, sec. '4'.
122 Tenn. 647State ex rel. Estill v. Endsley (1909)
1. ARREST. Sheriff, without a warrant, has no authority to rearrest a prisoner improperly released by him. Where the sheriff wrongfully and unlawfully discharged a prisoner before the expiration of his term of imprisonment imposed as punishment upon his conviction of the commission of an offense, by releasing him to another upon his payment of the fine imposed and the costs, upon the agreement of the prisoner to remain with his liberator and work for him until he should .be repaid, the sheriff acted improperly and without authority in rearresting the prisoner without a warrant. (Post, pp. 649, 650.) Case cited and approved: McCaslin v. McCord, 116 Tenn., 690. 2. HABEAS CORPUS. Prisoner unlawfully discharged and improperly rearrested without warrant is properly in custody under original commitment, and is not entitled to be released. A prisoner so improperly discharged before the expiration of his term of imprisonment, and released to another upon his payment of the fine and costs, and wrongfully rearrested by the sheriff without a warrant, is not entitled to be released upon a writ of habeas corpus; for, upon regaining the custody of the prisoner, it was the duty of the sheriff to hold him under the original commitment until the satisfaction of its demands, upon the principle that where one is properly in custody, the unlawfulness of the manner by which the custody was obtained is immaterial. (Post, p. 650.) Cases cited and approved: Cook v. Hart, 146 U. S., 183-195; Re Johnson, 167 U. S., 120-122. 3. IMPRISONMENT AND FINE. Sentence of imprisonment must be served before prisoner can be bailed out to work out fine and costs. A prisoner must first serve out tbe time for wbicb be is sentenced, and then work out bis fine and costs. After tbe time of imprisonment bas been served, tbe prisoner may be, witb bis consent, bailed out to any one wbo will secure bis fine and costs. Sucb bail cannot be given, however, until tbe term of imprisonment imposed as part of tbe punishment bas been served. (.Post, pp. 650, 651.) Code cited and construed: Secs. 7417, 7424 (S.)
122 Tenn. 652Pelican Assurance Co. v. American Feed & Grocery Co. (1909)
1. ARREST OF JUDGMENT. Motion for new trial is waived by-prior motion in arrest of judgment. The making of a motion in arrest of judgment prior to the motion for a new- trial operates as a waiver of the motion for a new trial. Case cited and approved: Hall v. State, 110 Tenn., 366. 2, SAME. Same. Minute entry of motion “in arrest of judgment and for a new trial” construed as showing motion in arrest first made and disposed of first. Whether the minute entry that the defendant moved “the court in arrest of judgment and for a new trial” be considered as a single motion embracing two distinct, if not incongruous, matters of procedure, or be construed as the equivalent of a recital of the two motions, yet the necessary inference would be that the motion in arrest of the judgment was first made, and was disposed of first. Case cited and approved: Hall v. State, 110 Tenn., 366. S. NEW TRIAL. Bill of exceptions to preserve matters extrinsic to the technical record for review of action on motion for new trial. The errors of the trial judge in his rulings on the evidence, in overruling a motion for peremptory instructions, and in giving and refusing instructions, occurring in the trial of the cause, constitute grounds of a motion for a new trial to be made in the trial court, and such errors must be preserved and made a part of the record by a bill of exceptions to obtain a review of the action of the trial judge in refusing the motion, because such errors rest upon matters extrinsic to the technical record. Case cited and approved: Railroad v. Johnson, 114 Tenn., 633. 4. ARREST OF JUDGMENT. Motion in arrest lies alone for what defects. A motion in arrest of judgment lies alone for some error which vitiates the proceeding, or is of so serious a character that judgment should not he rendered; and it can only he maintained for a defect upon the face of the record, and the evidence is no part of the record for this purpose. Cases cited and approved: Bond v. Dustin, 112 IT. S., 604; Yan Stone v. Stillwell, 142 U. S., 128. 6. SAME. Same. Errors to be considered on motion for new trial cannot be reviewed in supreme court because motion in arrest of judgment was overruled. Errors that are properly raised for consideration upon a motion for a new trial cannot he made the subject of investigation in the supreme court, hy reason of the fact that a motion in arrest of judgment was overruled; for such practice and procedure would operate to abolish all distinction between a motion for a new trial and a motion in arrest of judgment.
122 Tenn. 656Wright v. Hurst (1909)
1. ADVERSE POSSESSION. . Under a junior grant on an inter-lap for seven years perfects title. There is no doubt that, from the case of Napier v. Simpson, 1 Tenn., 453, down to Byrd v. Phillips, 120 Tenn., 14, an adverse holding, under a junior grant upon an interlap, for the term of seven years, gave the occupant a fee under the first section of Acts 1819, ch. 28, and it was not the purpose of the court, in the Bleidorn Case (89 Tenn., 166, 204), to modify this rule. (Post, pp. 662, 663.) Acts cited and construed: Acts 1819, eh. 28, sec. 1. Cases cited and approved: Napier v. Simpson, 1 Tenn., 453; Byrd v. Phillips, 120 Tenn., 14; and approving intermediate cases. Case cited and distinguished: Bleidorn v„ Pilot Mountain Coal & Mining Co., 89 Tenn., 166, 204. 2. SAME. On land excluded by the grant from its operation is not under color of title, when. Where the State’s grant includes within its boundaries, but excludes from its operation, all older and superior claims, it is not operative as color of title to the land so included and excluded, and sufficiently identified and located within the grant, and shown to be covered by older and superior title, and possession of part or all of such included and excluded land is not a possession under color of title. (Post, pp. 664, 665.) Acts cited and construed: Acts 1819, ch. 28, sec. 1. Case cited and .distinguished: Bleidorn v. Pilot Mountain Coal & Mining Co., 89 Tenn., 166, 204. S. SAME. Same. Grant “platting out 600 acres prior claims” is not color of title to such, excluded land shown to be held by superior title. Where the State’s grant undertakes, by its terms, to vest in the grantee all the land embraced in its descriptive clause, “platting out 600 acres prior claims,’’ a possession affirmatively or otherwise shown to be on the 600 acres of excluded land held by superior title, identified and located, is not a possession under color of title by virtue of such grant. (Post, pp. 6.61, 665, 666.) Acts cited and construed: Acts 1819, ch. 28, sec. 1. Case cited and distinguished: Bleidorn v. Pilot Mountain Coal & Mining Co., 89 Tenn., 166, 204. 4. SAME. Same. Same. Grant for about 2,800 acres covered entirely by superior titles, “platting out 600 acres prior claims” is color of title to all, excepting the 600 acres, and to that also unless identified and located. Where the State’s grant embraces about 2,800 acres of land covered entirely by older and superior grants, and undertakes, by its terms, to vest in the grantee all the land embraced in its descriptive clause, “platting out 600 acres prior claims,” and it is not shown that the adverse possession under the grant is on the 600 acres so excluded, the words of exclusion cannot have the legal effect of destroying the grant a color of title, because the land is covered entirely by older and superior grants; and as to so much of the land so granted as lies outside of the 600 acres, identified and located, the grant is color of title, and if the 600 acres is not identified and located within the grant, the grant is color of title to that also. (Post, pp. 661, 665, 666, 669.) Acts cited and construed: Acts 1819, ch. 28, sec. 1. Case cited and distinguished: Bleidorn v. Pilot Mountain Coal & Mining Co., 89 Tenn., 166, 204. 5.BOUNDARIES. Call for course, or distance between two points, means a straight line, unless there is a clear intimation to the contrary. Where the State’s grant calls for a course, or distance between two points, it will he presumed that the State and the enterer and grantee intended a straight line, unless there is a clear intimation to the contrary. {Post, pp. 667, 668.) Case cited, approved, and distinguished: Burns v. Greaves, Cooke, 79. 6. SAME. Same. Call with meanders of a stream, for a certain distance, “when reduced to a straight line,” means that distance on a straight line. A call in a 'grant, from a given point on a creek, “east with the various meanders of said creek, in all 800 poles, when reduced to a straight line, to a stake on said creek,” the distance this line lay along the creek, on a straight line, was 800 poles. This locative call was the south boundary line of the land granted; and whatever ambiguity there might be in this call, if any, is removed by the fact the north boundary line of the grant, corresponding in length with it, is a straight line 800 poles long. _ {Post, pp. 661, 666-668.) Case cited, approved, and distinguished: Burns v. Greaves, Cooke, 75. 7. LAND LAWS. State’s grant for certain land, “platting out 600 acres prior claims,” and determination of what lands are and what are not embraced in the 600 acres. Where the State’s grant undertakes, by its terms, to vest in the grantee, all the land (about 2,800 acres altogether) embraced in its descriptive clause, “platting out 600 acres prior claims,” and it appears that the State had issued three prior grants, which, interlapping, covered the said entire tract of about 2,800 acres, the court cannot determine that any of said prior grants or which of them legally embrace the 600 acres to be platted out, or any particular part thereof; hut where it appears that a part of a prior grant for 100 acres, issued before the said three grants, lies within the limits of the said later grant for about 2,800 acres, the court determines and adjudges that this is one of the tracts which made up the 600 acres of prior claims to be platted out. {Post, pp. 661, 665, 666, 669.) 8. EEMANDMENT. To ascertain what part of prior grant lies within a later grant “platting out . . . prior claims,” when. Where the State’s grant is for certain land, “platting out 600 acres prior claims,” and it not being clear how much of a certain 100 acre tract 'granted, by a prior giant and constituting one of the tracts making up the 600 acres of prior claims to be platted out, lies within the said later grant, the ease may be remanded to ascertain the facts, and for a decree founded thereon. {Post, pp. 661,' 669). 9. LAND LAWS. Grant issued upon a special entry relates to the date of the entry. A grant of the State issued upon a special entry relates to the date of the entry, and prevails over a prior grant issued after the date of such entry. {Post, pp. 669, 670.) 10. ADVERSE POSSESSION. Under younger grant on its inter-lap with an elder grant perfects title under younger grant, when. The grantee’s adverse possession under a younger grant on its interlap with an elder grant, for seven years, is effectual to create a fee in the possessor, which will descend to his heirs. {Post, pp. 661, 662, 670.) 11. SAME. Under younger grant, but not within interlap with older grant, does not toll or affect the title of the older grant. The grantee’s adverse possession, for seven years, under a younger grant, upon some part of the land, but not within the interlap with an older grant, does not perfect the title of the possessor so as to entitle him or his heirs to recover the land embraced in the older grant and lying within the younger grant. {Post, pp. 662, 670.) Case cited and approved: Elliott v. Coal & Coke Co.. 109 Tenn., 745.
122 Tenn. 671Singer v. Singer (1909)
SUPREME COURT JURISDICTION. Where each of several claimants sue individually in chancery for separate sums less than one thousand dollars, but the aggregate of which exceeds that amount, the court of civil appeals, and not the supreme court, has appellate jurisdiction. Where the attorneys for the contestant in a will contest in the circuit court, after procuring the will to he set aside, filed their several petitions in a suit pending in the chancery court involving the administration of the estate of the then intestate whose will was set aside, for the purpose of subjecting the interest of said contestant in the estate of said intestate to the payment of their fees, the amount of which claimed by each attorney individually was less than one thousand dollars, but the aggregate amount of the fees claimed by all exceeded that sum, whereupon their several petitions, for convenience and to save expense, were consolidated in the chancery court and heard together, and a decree was pronounced in favor of each attorney, respectively, for a sum less than that claimed by him, from which decree each of said attorneys severally prayed :and prosecuted an appeal to the supreme court, the appellate jurisdiction of the supreme court should he determined by the individual controversies, and by the amount each claims the right to recover, and under the statute (Acts 1907, ch. 82) creating the court of civil appeals and (by section 7 thereof) conferring upon that court appellate jurisdiction of all chancery cases involving money recoveries, except where the amount involved in controversy, exclusive of costs, exceeds one thousand dollars, the court of civil appeals, and not the supreme court, has jurisdiction of the said appeals. Acts cited and construed: Acts 1907, ch. 82, sec. 7. Cases cited and approved: Seaver v. Bigelow, 5 Wall., 208; Paving Co. v. Mulford, 100 ü. S., 147; Russell v. Stansell, 105 U. S., 303; Railroad, In re, 106 U. S., 5 (and citations); Loan & Trust Co. v. Waterman, 106 U. S., 265; Hawley v. United States, ex rel., 108 U. S., 556; Tupper v. Wise, 110 U. S., 398; Bank v. Stout, 113 U. S., 684; Henderson v. Wadsworth, 115 U. S„ 264; Tupino v. Compañía General d® Tabacos, 214 U. S., 268; Farwell v. Becker, 129 Ill., 261; Spangler v. Green, 21 Colo., 505. Cases cited and distinguished: Market Co. v. Hoffman, 101 U. S., 112; Davies v. Corbin, 112 U. S., 36; Railroad v. Parker, 143 U. S., 42; Overby v. Gordon, 177 U. S., 214; McDaniel v. Traylor, 196 U. S., 415; Morgan v. Adams, 211 U. S., 627.
122 Tenn. 694Phy v. Hatfield (1909)
1. ABANDONMENT. Of title to land must be shown by clear and unmistakable affirmative act of repudiation. The abandonment of title to land by the owner must be shown by some clear and unmistakable affirmative act indicating a purpose to repudiate the ownership. (Post, p. 696.) Case cited and approved: Woods v. Bonner, 87 Tenn., 411, 414, 41S. 2. SAME. Same. Not presumed from failure to pay taxes, or to take actual possession and to prevent casual trespasses, when. It cannot be presumed that a perfect title to granted land was abandoned from the owner’s failure for thirty-five years to pay the taxes, or to take actual possession of the land and prevent casual trespasses, though such presumption might be indulged if the title was imperfect. (Post, p. 696.) Cases cited and approved: Hoffman v. Bell, 61 Pa., 444; Coal Co. v. Dewart, 95 Pa., 72, 78; Kreamer v. Yoneida, 213 Pa., 74; Doty v. Gillett, 43 Mich., 203; Barrett v. Coal Co., 70 Kan., 649; Oil Co. v. Kimball (Tex. Civ. App.), 114 S. W., 662.
122 Tenn. 698Rhinehart v. State (1909)
1. BILL OP EXCEPTION'S. Time for preparing1 may be allowed not to exceed thirty days after the adjournment. The former rule of law that a bill of exceptions filed after the close of the term at which the case was tried came too late and could not be considered as a part of the record was modified by statute (Acts 1899, ch. 275, sec. 1) authorizing the trial judge or chancellor, in his discretion, in all cases of appeal from trial courts to the supreme court, to allow the parties time in which to prepare a bill of exceptions, not to exceed thirty days after the adjournment. (Post, pp. 700, 701.) Acts cited and construed: Acts 1899, ch. 275, sec. 1. Cases cited and approved: Clark v.'Lary, 3 Sneed, 77; McGavock v. Puryear, 6 Cold., S4; Jones v. Burch, 3 Lea, 747; Sims v. State, 4 Lea, 359; Patterson v. Patterson, 89 Tenn., 151; Ballard v. Railroad, 94 Tenn., 205; Bettis v. State, 103 Tenn., 339. 2. SAME. Same. Continuance of motion for new trial to the next term does not carry the whole case over into the next term so as to authorize thereat a bill of exceptions to be signed and filed; rule not changed by statute. The continuance of a motion for a new trial from the trial term to the succeeding term of the court does not authorize the preparation and filing of a bill' of exceptions within the extension of thirty days’ time granted by the court upon overruling such motion at the next term. Such continuance of the motion for a new trial does not carry the whole case over into the next term so as to authorize thereat such extension of time, and the preparation, signing, and filing of a bill of exceptions within such extension. This rule is riot affected or modified by a statute (Acts 1899, ch. 40) providing that whenever a case is pending and on trial by court or jury, undetermined when the term expires, on account of time and the arrival of the succeeding term, the term shall he extended and continued into such succeeding term for all the purposes of trying, disposing of and returning verdict,, and rendering judgment in such case so pending and on trial, the same as if such new term had not arrived. (Post, pp. 701-703.) Acts cited and construed: Acts 1899, ch. 40. Cases cited and distinguished: Railroad v. Simmons, 107 Tenn., 392; Ray v. State, 108 Tenn.; 282.
122 Tenn. 704Balden v. State (1909)
1. GRAND JURY. Members may be selected from panel drawn and furnished by the jury commissioners, and may be designated by name by the judge of the criminal court of Davidson county. The power of the judge of the criminal court of Davidson county, existing under the fourth section of Acts 1841-42, ch. 52, establishing said court, with the machinery necessary for such court, complete in all its details, to appoint, from the body of said county, thirty-seven qualified men to attend said court and serve as jurors, and to appoint a sufficient number of talesmen or veniremen to attend for jury service, was superseded, suspended, or made inoperative by Acts 1901, ch. 124, creating a board of jury commissioners for said county; and, by the fourth section, requiring the board to select a list of names of men to serve as jurors, whose names shall be put in a jury box; and, by the fifth section, requiring said jury commissioners to draw from the jury box the number required by. law for the grand and petit juries for each term of the courts, because the later act is manifestly inconsistent with and repugnant to the earlier act in this particular; but the power of said judge under the said fourth section of the earlier act to designate by name thirteen qualified persons to serve as a grand jury, or to designate a larger panel, and from the same to select the required number of thirteen, is not superseded, suspended, or made inoperative by the fifth section of said later act requiring that from the said panel so drawn the grand and petit juries shall be made up, “as now provided by law,” because there is no unavoidable inconsistency and repugnancy between the two acts in this particular. (Post, pp. 708-724.) Code cited and construed: Sec. 5827 (S.); sec. 4791 (M. & V.); secs. 4015, 4253 (T. & S. and 1858). Acts cited and construed: Acts 1841-42, ch. 52, sec. 4; Acts 1901, ch. 124, secs. 1, 4, and 5. Case cited and approved: Harris v. State, 100 Tenn., 289. 3. STATUTES. Repeals by implication are not favored, and re-pugnancy must-be irreconcilable to operate as a repeal by im-' plication. The repeal of statutes by implication is not favored, and the re-pugnancy between the older and later statutes must be plain, unavoidable, and irreconcilable, in order to operate as a repeal by implication. (Post, pp. 717, 718.) Cases cited and approved: Fisher v. Baldridge, 91 Tenn., 420; Blaufield v. State, 103 Tenn., 600; McCampbell v. State, 116 Tenn., 105; Railroad V. Railway, 116 Tenn., 515; Carroll v. Griffith, 117 Tenn., 500; Railroad v. Byrne, 119 Tenn., 315. 3. SAME. Same. Inconsistent statute embracing entire subject-matter of a prior statute renders it inoperative. A statute inconsistent with, and embracing the entire subject-matter of, a prior statute, repeals it by implication, or, more accurately speaking, renders the prior statute inoperative during the life or existence of such later statute. (Post, pp. 718, 719.) Cases cited and approved: Insurance Co. .v. Taxing District, 4 Lea, 648; Poe v. State, 85 Tenn., 495; Terrell v. State, 86 Tenn., 523; Rodemer v. Mitchell, 90 Tenn., 65; State, ex rel., v. Butcher, 93 Tenn., 679; Chattanooga v. Neely, 97 Tenn., 527. 4. SAME. Same. Same. *■ Implied repeal operates only to the extent of the repugnance, where the later statute does not embrace all of the former statute; and does not substitute a new system. It is well settled that where the later statute does not cover or embrace all of the provisions of the earlier one,' and does not manifest a clear and unmistakable intention to provide and substitute a new system for the old, the provisions of the earlier act not clearly covered by the later one are unaffected and still in force, and the repeal operates only to the extent of the repugnance and conflict. (Post, p. 721.) Cases cited and approved: Cate v. State, 3 Sneed, 120; Hockaday v. Wilson, 1 Head, 114; Frazier v. Railroad, 88 Tenn., 163, 166; Iron Co. v. Pace, 89 Tenn., 707; Durham v. State, 89 Tenn., 730; Bailey v. Drane, 96 Tenn., 19. 5. GRAND JURY. Irregularity in judge’s failure to compare names on slips with list does not invalidate action of grand jury, when. The purpose of the jury commissioners statute (Acts 1901, ch. 124, sec. 5), in providing that the judge shall first compare the lists contained in the jury commissioners’ report, which is filed with the clerk of the court, with the names on the slips delivered in court by the chairman of the board, which, if they correspond, shall constitute the panel of grand and petit jurors for the term, is to enable the court to see that the list reported to it and summoned corresponds with the names on the slips; and where there is no averment and showing that the names did not so correspond, the accused cannot avail himself of the irregularity in the failure of the judge to compare the list with the names on the slips, so as to affect the composition and action of the grand jury, especially since the statute provides, in its 17th section, that, in the absence of fraud, no irregularity with respect to the provisions of the act shall affect the validity of any action of a grand jury, if the act has been substantially complied with. (Post, pp. 725, 726.) Acts cited and construed: Acts 1901, ch. 124, secs. 5 and 17. 6. JURY COMMISSIONERS DAW. Presumption that report was filed and properly indorsed, in absence of averment to contrary. It must be assumed that the report of the jury commissioners was filed in the office of the clerk of the court and properly indorsed as required by tbe statute, in tbe absence of averment and showing to tbe contrary. (Post, p. 726.) Acts cited and construed: Acts 1901, cb.'124, sec. 5. 7. SAME. Same. Failure to spread répprt on minutes is a mere irregularity not prejudicial to accused. Tbe report of tbe jury commissioners giving the names of the panel of jurors for tbe term, when filed in tbe office of tbe clerk of tbe court and properly indorsed by him as required by tbe statute, becomes a record of tbe court, and tbe mere fact that it was not spread upon tbe minutes of tbe court is a mere irregularity which could not in any wise prejudice tbe accused. IPost, p. 726.) Acts cited and construed: Acts 1901, cb. 124, sec. 5. 8. GRAND JURY. Irregularity in court order upon jury commissioners for excessive number of jurors does not affect validity of action of grand jury. A court order directing tbe jury commissioners to furnish tbe court five hundred names from which to select the grand and petit juries for the ensuing term substantially complies with Acts 1901, ch. 124, sec. 5, requiring the court, by order on the minutes, to designate the number of juries and additional and extra jurors who shall be in attendance on the court, since the number of jurors is fixed by law, and it is a mere matter of calculation to determine how many jurors and additional and extra jurors are included in the order, so that any irregularity was cured by section 17 of said act, providing that, in the absence of fraud, no irregularity as to the provisions of the act shall affect the validity of any action of the grand jury, if the act has been substantially complied with. (Post, pp. 726, 727.) Acts cited and construed: Acts 1901, ch. 124, secs. 5 and 17.
122 Tenn. 729Bishop v. State (1909)
FROM LINCOLN. Appeal in error from the Circuit Court of Lincoln County. — Jos. C. Higgins, Judge.